1.1A bill for an act1.2relating to health; amending provisions for electronic health record technology; 1.3providing for administrative penalties; appropriating money;amending 1.4Minnesota Statutes 2009 Supplement, sections 62J.495, subdivisions 1a, 3, by 1.5adding a subdivision; 62J.497, subdivisions 4, 5; proposing coding for new law 1.6in Minnesota Statutes, chapter 62J.1.7BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:1.8    Section 1. Minnesota Statutes 2009 Supplement, section 62J.495, subdivision 1a, 1.9is amended to read:1.10    Subd. 1a. Definitions. (a) "Certified electronic health record technology" means an 1.11electronic health record that is certified pursuant to section 3001(c)(5) of the HITECH 1.12Act to meet the standards and implementation specifications adopted under section 3004 1.13as applicable.1.14(b) "Commissioner" means the commissioner of health.1.15(c) "Pharmaceutical electronic data intermediary" means any entity that provides 1.16the infrastructure to connect computer systems or other electronic devices utilized 1.17by prescribing practitioners with those used by pharmacies, health plans, third-party 1.18administrators, and pharmacy benefit managers in order to facilitate the secure 1.19transmission of electronic prescriptions, refill authorization requests, communications, 1.20and other prescription-related information between such entities.1.21(d) "HITECH Act" means the Health Information Technology for Economic and 1.22Clinical Health Act in division A, title XIII and division B, title IV of the American 1.23Recovery and Reinvestment Act of 2009, including federal regulations adopted under 1.24that act.2.1(e) "Interoperable electronic health record" means an electronic health record that 2.2securely exchanges health information with another electronic health record system that 2.3meets requirements specified in subdivision 3, and national requirements for certification 2.4under the HITECH Act.2.5(f) "Qualified electronic health record" means an electronic record of health-related 2.6information on an individual that includes patient demographic and clinical health 2.7information and has the capacity to:2.8(1) provide clinical decision support;2.9(2) support physician order entry;2.10(3) capture and query information relevant to health care quality; and2.11(4) exchange electronic health information with, and integrate such information 2.12from, other sources.2.13    Sec. 2. Minnesota Statutes 2009 Supplement, section 62J.495, subdivision 3, is 2.14amended to read:2.15    Subd. 3. Interoperable electronic health record requirements.  To meet the 2.16requirements of subdivision 1, hospitals and health care providers must meet the following 2.17criteria when implementing an interoperable electronic health records system within their 2.18hospital system or clinical practice setting.2.19(a) The electronic health record must be a qualified electronic health record.2.20    (b) The electronic health record must be certified by the Office of the National 2.21Coordinator pursuant to the HITECH Act. This criterion only applies to hospitals and 2.22health care providers only if a certified electronic health record product for the provider's 2.23particular practice setting is available. This criterion shall be considered met if a hospital 2.24or health care provider is using an electronic health records system that has been certified 2.25within the last three years, even if a more current version of the system has been certified 2.26within the three-year period.2.27(c) The electronic health record must meet the standards established according to 2.28section 3004 of the HITECH Act as applicable.2.29(d) The electronic health record must have the ability to generate information on 2.30clinical quality measures and other measures reported under sections 4101, 4102, and 2.314201 of the HITECH Act.2.32(e) The electronic health record system must be connected to a state-certified 2.33health information organization either directly or through a connection facilitated by a 2.34state-certified health data intermediary as defined in section 62J.498.3.1    (e) (f) A health care provider who is a prescriber or dispenser of legend drugs must 3.2have an electronic health record system that meets the requirements of section 
         62J.497.3.3    Sec. 3. Minnesota Statutes 2009 Supplement, section 62J.495, is amended by adding a 3.4subdivision to read:3.5    Subd. 6.State agency information system.Development of state agency 3.6information systems necessary to implement this section is subject to the authority of the 3.7Office of Enterprise Technology in chapter 16E, including, but not limited to:3.8(1) evaluation and approval of the system as specified in section 16E.03, subdivisions 3.93 and 4;3.10(2) review of the system to ensure compliance with security policies, guidelines, and 3.11standards as specified in section 16E.03, subdivision 7; and3.12(3) assurance that the system complies with accessibility standards developed under 3.13section 16E.03, subdivision 9.3.14    Sec. 4. Minnesota Statutes 2009 Supplement, section 62J.497, subdivision 4, is 3.15amended to read:3.16    Subd. 4. Development and use of uniform formulary exception form. (a) The 3.17commissioner of health, in consultation with the Minnesota Administrative Uniformity 3.18Committee, shall develop by July 1, 2009, a uniform formulary exception form that allows 3.19health care providers to request exceptions from group purchaser formularies using a 3.20uniform form. Upon development of the form, all health care providers must submit 3.21requests for formulary exceptions using the uniform form, and all group purchasers must 3.22accept this form from health care providers.3.23    (b) No later than January 1, 2011, the uniform formulary exception form must be 3.24accessible and submitted by health care providers, and accepted and processed by group 3.25purchasers, through secure electronic transmissions. Facsimile shall not be considered 3.26secure electronic transmissions.3.27    Sec. 5. Minnesota Statutes 2009 Supplement, section 62J.497, subdivision 5, is 3.28amended to read:3.29    Subd. 5. Electronic drug prior authorization standardization and transmission.3.30    (a) The commissioner of health, in consultation with the Minnesota e-Health Advisory 3.31Committee and the Minnesota Administrative Uniformity Committee, shall, by February 3.3215, 2010, identify an outline on how best to standardize drug prior authorization request 4.1transactions between providers and group purchasers with the goal of maximizing 4.2administrative simplification and efficiency in preparation for electronic transmissions.4.3    (b) By January 1, 2014, the Minnesota Administrative Uniformity Committee shall 4.4develop the standard companion guide by which providers and group purchasers will 4.5exchange standard drug authorization requests using electronic data interchange standards, 4.6if available, with the goal of alignment with standards that are or will potentially be used 4.7nationally.4.8(c) No later than January 1, 2011 2015, drug prior authorization requests must be 4.9accessible and submitted by health care providers, and accepted by group purchasers, 4.10electronically through secure electronic transmissions. Facsimile shall not be considered 4.11electronic transmission.4.12    Sec. 6. [62J.498] HEALTH INFORMATION EXCHANGE.4.13    Subdivision 1. Definitions. The following definitions apply to sections 62J.498 to 4.1462J.4982:4.15(a) "Clinical transaction" means any meaningful use transaction that is not covered 4.16by section 62J.536.4.17(b) "Commissioner" means the commissioner of health.4.18(c) "Direct health information exchange" means the electronic transmission of 4.19health-related information through a direct connection between the electronic health 4.20record systems of health care providers without the use of a health data intermediary.4.21(d) "Health care provider" or "provider" means a health care provider or provider as 4.22defined in section 62J.03, subdivision 8.4.23(e) "Health data intermediary" means an entity that provides the infrastructure to 4.24connect computer systems or other electronic devices used by health care providers, 4.25laboratories, pharmacies, health plans, third-party administrators, or pharmacy benefit 4.26managers to facilitate the secure transmission of health information, including 4.27pharmaceutical electronic data intermediaries as defined in section 62J.495. This does not 4.28include health care providers engaged in direct health information exchange.4.29(f) "Health information exchange" means the electronic transmission of 4.30health-related information between organizations according to nationally recognized 4.31standards.4.32(g) "Health information exchange service provider" means a health data intermediary 4.33or health information organization that has been issued a certificate of authority by the 4.34commissioner under section 62J.4981.5.1(h) "Health information organization" means an organization that oversees, governs, 5.2and facilitates the exchange of health-related information among organizations according 5.3to nationally recognized standards.5.4(i) "HITECH Act" means the Health Information Technology for Economic and 5.5Clinical Health Act as defined in section 62J.495.5.6(j) "Major participating entity" means:5.7(1) a participating entity that receives compensation for services that is greater 5.8than 30 percent of the health information organization's gross annual revenues from the 5.9health information exchange service provider;5.10(2) a participating entity providing administrative, financial, or management services 5.11to the health information organization, if the total payment for all services provided by the 5.12participating entity exceeds three percent of the gross revenue of the health information 5.13organization; and5.14(3) a participating entity that nominates or appoints 30 percent or more of the board 5.15of directors of the health information organization.5.16(k) "Meaningful use" means use of certified electronic health record technology that 5.17includes e-prescribing, and is connected in a manner that provides for the electronic 5.18exchange of health information and used for the submission of clinical quality measures 5.19as established by the Center for Medicare and Medicaid Services and the Minnesota 5.20Department of Human Services pursuant to sections 4101, 4102, and 4201 of the HITECH 5.21Act.5.22(l) "Meaningful use transaction" means an electronic transaction that a health care 5.23provider must exchange to receive Medicare or Medicaid incentives or avoid Medicare 5.24penalties pursuant to sections 4101, 4102, and 4201 of the HITECH Act.5.25(m) "Participating entity" means any of the following persons, health care providers, 5.26companies, or other organizations with which a health information organization or health 5.27data intermediary has contracts or other agreements for the provision of health information 5.28exchange service providers: 5.29(1) a health care facility licensed under sections 144.50 to 144.56, a nursing home 5.30licensed under sections 144A.02 to 144A.10, and any other health care facility otherwise 5.31licensed under the laws of this state or registered with the commissioner;5.32(2) a health care provider, and any other health care professional otherwise licensed 5.33under the laws of this state or registered with the commissioner;5.34(3) a group, professional corporation, or other organization that provides the 5.35services of individuals or entities identified in clause (2), including but not limited to a 6.1medical clinic, a medical group, a home health care agency, an urgent care center, and 6.2an emergent care center;6.3(4) a health plan as defined in section 62A.011, subdivision 3; and6.4(5) a state agency as defined in section 13.02, subdivision 17.6.5(n) "Reciprocal agreement" means an arrangement in which two or more health 6.6information exchange service providers agree to share in-kind services and resources to 6.7allow for the pass-through of meaningful use transactions.6.8(o) "State-certified health data intermediary" means a health data intermediary that:6.9(1) provides a subset of the meaningful use transaction capabilities necessary for 6.10hospitals and providers to achieve meaningful use of electronic health records;6.11(2) is not exclusively engaged in the exchange of meaningful use transactions 6.12covered by section 62J.536; and6.13(3) has been issued a certificate of authority to operate in Minnesota.6.14(p) "State-certified health information organization" means a nonprofit health 6.15information organization that provides transaction capabilities necessary to fully support 6.16clinical transactions required for meaningful use of electronic health records that has been 6.17issued a certificate of authority to operate in Minnesota.6.18    Subd. 2. Health information exchange oversight. (a) The commissioner shall 6.19protect the public interest on matters pertaining to health information exchange. The 6.20commissioner shall:6.21(1) review and act on applications from health data intermediaries and health 6.22information organizations for certificates of authority to operate in Minnesota;6.23(2) provide ongoing monitoring to ensure compliance with criteria established under 6.24sections 62J.498 to 62J.4982;6.25(3) respond to public complaints related to health information exchange services;6.26(4) take enforcement actions as necessary, including the imposition of fines, 6.27suspension, or revocation of certificates of authority as outlined in section 62J.4982;6.28(5) provide a biennial report on the status of health information exchange services 6.29that includes but is not limited to:6.30(i) recommendations on actions necessary to ensure that health information exchange 6.31services are adequate to meet the needs of Minnesota citizens and providers statewide;6.32(ii) recommendations on enforcement actions to ensure that health information 6.33exchange service providers act in the public interest without causing disruption in health 6.34information exchange services;6.35(iii) recommendations on updates to criteria for obtaining certificates of authority 6.36under this section; and7.1(iv) recommendations on standard operating procedures for health information 7.2exchange, including but not limited to the management of consumer preferences;7.3(6) other duties necessary to protect the public interest.7.4(b) As part of the application review process for certification under paragraph (a), 7.5prior to issuing a certificate of authority, the commissioner shall:7.6(1) hold public hearings that provide an adequate opportunity for participating 7.7entities and consumers to provide feedback and recommendations on the application under 7.8consideration. The commissioner shall make all portions of the application classified 7.9as public data available to the public at least ten days in advance of the hearing. The 7.10applicant shall participate in the hearing by presenting an overview of their application 7.11and responding to questions from interested parties;7.12(2) make available all feedback and recommendations gathered at the hearing 7.13available to the public prior to issuing a certificate of authority; and7.14(3) consult with hospitals, physicians, and other professionals eligible to receive 7.15meaningful use incentive payments or subject to penalties as established in the HITECH 7.16Act, and their respective statewide associations, prior to issuing a certificate of authority.7.17(c) When the commissioner is actively considering a suspension or revocation of a 7.18certificate of authority as described in section 62J.4982, subdivision 3, all investigatory 7.19data that are collected, created, or maintained related to the suspension or revocation 7.20are classified as confidential data on individuals and as protected nonpublic data in the 7.21case of data not on individuals.7.22(d) The commissioner may disclose data classified as protected nonpublic or 7.23confidential under paragraph (c) if disclosing the data will protect the health or safety of 7.24patients.7.25(e) After the commissioner makes a final determination regarding a suspension or 7.26revocation of a certificate of authority, all minutes, orders for hearing, findings of fact, 7.27conclusions of law, and the specification of the final disciplinary action, are classified 7.28as public data.7.29    Sec. 7. [62J.4981] CERTIFICATE OF AUTHORITY TO PROVIDE HEALTH 7.30INFORMATION EXCHANGE SERVICES.7.31    Subdivision 1. Authority to require organizations to apply. The commissioner 7.32shall require an entity providing health information exchange services to apply for a 7.33certificate of authority under this section. An applicant may continue to operate until 7.34the commissioner acts on the application. If the application is denied, the applicant is 8.1considered a health information organization whose certificate of authority has been 8.2revoked under section 62J.4982, subdivision 2, paragraph (d).8.3    Subd. 2. Certificate of authority for health data intermediaries. (a) A health 8.4data intermediary that provides health information exchange services for the transmission 8.5of one or more clinical transactions necessary for hospitals, providers, or eligible 8.6professionals to achieve meaningful use must be registered with the state and comply with 8.7requirements established in this section.8.8(b) Notwithstanding any law to the contrary, any corporation organized to do so 8.9may apply to the commissioner for a certificate of authority to establish and operate as 8.10a health data intermediary in compliance with this section. No person shall establish or 8.11operate a health data intermediary in this state, nor sell or offer to sell, or solicit offers 8.12to purchase or receive advance or periodic consideration in conjunction with a health 8.13data intermediary contract unless the organization has a certificate of authority or has an 8.14application under active consideration under this section.8.15(c) In issuing the certificate of authority, the commissioner shall determine whether 8.16the applicant for the certificate of authority has demonstrated that the applicant meets 8.17the following minimum criteria:8.18(1) interoperate with at least one state-certified health information organization;8.19(2) provide an option for Minnesota entities to connect to their services through at 8.20least one state-certified health information organization;8.21(3) have a record locator service as defined in section 144.291, subdivision 2, 8.22paragraph (i), that is compliant with the requirements of section 144.293, subdivision 8, 8.23when conducting meaningful use transactions; and8.24(4) hold reciprocal agreements with at least one state-certified health information 8.25organization to enable access to record locator services to find patient data, and for the 8.26transmission and receipt of meaningful use transactions consistent with the format and 8.27content required by national standards established by Centers for Medicare and Medicaid 8.28Services. Reciprocal agreements must meet the requirements established in subdivision 5.8.29    Subd. 3. Certificate of authority for health information organizations.8.30 (a) A health information organization that provides all electronic capabilities for the 8.31transmission of clinical transactions necessary for meaningful use of electronic health 8.32records must obtain a certificate of authority from the commissioner and demonstrate 8.33compliance with the criteria in paragraph (c).8.34(b) Notwithstanding any law to the contrary, a nonprofit corporation organized to do 8.35so may apply for a certificate of authority to establish and operate a health information 8.36organization under this section. No person shall establish or operate a health information 9.1organization in this state, nor sell or offer to sell, or solicit offers to purchase or receive 9.2advance or periodic consideration in conjunction with a health information organization 9.3or health information contract unless the organization has a certificate of authority under 9.4this section.9.5(c) In issuing the certificate of authority, the commissioner shall determine whether 9.6the applicant for the certificate of authority has demonstrated that the applicant meets 9.7the following minimum criteria:9.8(1) the entity is a legally established, nonprofit organization;9.9(2) appropriate insurance, including liability insurance, for the operation of the 9.10health information organization is in place and sufficient to protect the interest of the 9.11public and participating entities;9.12(3) strategic and operational plans clearly address how the organization will expand 9.13technical capacity of the health information organization to support providers in achieving 9.14meaningful use of electronic health records over time;9.15(4) the entity addresses the parameters to be used with participating entities and 9.16other health information organizations for meaningful use transactions, compliance with 9.17Minnesota law, and interstate health information exchange in trust agreements;9.18(5) the entity's board of directors is composed of members that broadly represent the 9.19health information organization's participating entities and consumers;9.20(6) the entity maintains a professional staff responsible to the board of directors with 9.21the capacity to ensure accountability to the organization's mission;9.22(7) the organization is compliant with criteria established under the Health 9.23Information Exchange Accreditation Program of the Electronic Healthcare Network 9.24Accreditation Commission (EHNAC) or equivalent criteria established by the 9.25commissioner;9.26(8) the entity maintains a record locator service as defined in section 144.291, 9.27subdivision 2, paragraph (i), that is compliant with the requirements of section 144.293, 9.28subdivision 8, when conducting meaningful use transactions;9.29(9) the organization demonstrates interoperability with all other state-certified health 9.30information organizations using nationally recognized standards;9.31(10) the organization demonstrates compliance with all privacy and security 9.32requirements required by state and federal law; and9.33(11) the organization uses financial policies and procedures consistent with generally 9.34accepted accounting principles and has an independent audit of the organization's 9.35financials on an annual basis.10.1(d) Health information organizations that have obtained a certificate of authority 10.2must:10.3(1) meet the requirements established for connecting to the Nationwide Health 10.4Information Network (NHIN) within the federally mandated timeline or within a time 10.5frame established by the commissioner and published in the State Register. If the state 10.6timeline for implementation varies from the federal timeline, the State Register notice 10.7shall include an explanation for the variation;10.8(2) annually submit strategic and operational plans for review by the commissioner 10.9that address:10.10(i) increasing adoption rates to include a sufficient number of participating entities to 10.11achieve financial sustainability; and10.12(ii) progress in achieving objectives included in previously submitted strategic 10.13and operational plans across the following domains: business and technical operations, 10.14technical infrastructure, legal and policy issues, finance, and organizational governance;10.15(3) develop and maintain a business plan that addresses:10.16(i) plans for ensuring the necessary capacity to support meaningful use transactions;10.17(ii) approach for attaining financial sustainability, including public and private 10.18financing strategies, and rate structures;10.19(iii) rates of adoption, utilization, and transaction volume, and mechanisms to 10.20support health information exchange; and10.21(iv) an explanation of methods employed to address the needs of community clinics, 10.22critical access hospitals, and free clinics in accessing health information exchange services;10.23(4) annually submit a rate plan to the commissioner outlining fee structures for health 10.24information exchange services for approval by the commissioner. The commissioner 10.25shall approve the rate plan if it:10.26(i) distributes costs equitably among users of health information services;10.27(ii) provides predictable costs for participating entities;10.28(iii) covers all costs associated with conducting the full range of meaningful use 10.29clinical transactions, including access to health information retrieved through other 10.30state-certified health information exchange service providers; and10.31(iv) provides for a predictable revenue stream for the health information organization 10.32and generates sufficient resources to maintain operating costs and develop technical 10.33infrastructure necessary to serve the public interest;10.34(5) enter into reciprocal agreements with all other state-certified health information 10.35organizations to enable access to record locator services to find patient data, and 10.36transmission and receipt of meaningful use transactions consistent with the format and 11.1content required by national standards established by Centers for Medicare and Medicaid 11.2Services. Reciprocal agreements must meet the requirements in subdivision 5; and11.3(6) comply with additional requirements for the certification or recertification of 11.4health information organizations that may be established by the commissioner. 11.5    Subd. 4. Application for certificate of authority for health information exchange 11.6service providers.(a) Each application for a certificate of authority shall be in a form 11.7prescribed by the commissioner and verified by an officer or authorized representative of 11.8the applicant. Each application shall include the following:11.9(1) a copy of the basic organizational document, if any, of the applicant and of 11.10each major participating entity, such as the articles of incorporation, or other applicable 11.11documents, and all amendments to it;11.12(2) a list of the names, addresses, and official positions of the following:11.13(i) all members of the board of directors, and the principal officers and, if applicable, 11.14shareholders of the applicant organization; and11.15(ii) all members of the board of directors, and the principal officers of each major 11.16participating entity and, if applicable, each shareholder beneficially owning more than ten 11.17percent of any voting stock of the major participating entity;11.18(3) the name and address of each participating entity and the agreed-upon duration 11.19of each contract or agreement if applicable;11.20(4) a copy of each standard agreement or contract intended to bind the participating 11.21entities and the health information organization. Contractual provisions shall be consistent 11.22with the purposes of this section, in regard to the services to be performed under the 11.23standard agreement or contract, the manner in which payment for services is determined, 11.24the nature and extent of responsibilities to be retained by the health information 11.25organization, and contractual termination provisions;11.26(5) a copy of each contract intended to bind major participating entities and the 11.27health information organization. Contract information filed with the commissioner under 11.28this section shall be nonpublic as defined in section 13.02, subdivision 9;11.29(6) a statement generally describing the health information organization, its health 11.30information exchange contracts, facilities, and personnel, including a statement describing 11.31the manner in which the applicant proposes to provide participants with comprehensive 11.32health information exchange services;11.33(7) financial statements showing the applicant's assets, liabilities, and sources 11.34of financial support, including a copy of the applicant's most recent certified financial 11.35statement;12.1(8) strategic and operational plans that specifically address how the organization 12.2will expand technical capacity of the health information organization to support providers 12.3in achieving meaningful use of electronic health records over time, a description of 12.4the proposed method of marketing the services, a schedule of proposed charges, and a 12.5financial plan that includes a three-year projection of the expenses and income and other 12.6sources of future capital;12.7(9) a statement reasonably describing the geographic area or areas to be served and 12.8the type or types of participants to be served;12.9(10) a description of the complaint procedures to be used as required under this 12.10section;12.11(11) a description of the mechanism by which participating entities will have an 12.12opportunity to participate in matters of policy and operation;12.13(12) a copy of any pertinent agreements between the health information organization 12.14and insurers, including liability insurers, demonstrating coverage is in place;12.15(13) a copy of the conflict of interest policy that applies to all members of the board 12.16of directors and the principal officers of the health information organization; and12.17(14) other information as the commissioner may reasonably require to be provided.12.18(b) Within 30 days after the receipt of the application for a certificate of authority, 12.19the commissioner shall determine whether or not the application submitted meets the 12.20requirements for completion in paragraph (a), and notify the applicant of any further 12.21information required for the application to be processed.12.22(c) Within 90 days after the receipt of a complete application for a certificate of 12.23authority, the commissioner shall issue a certificate of authority to the applicant if the 12.24commissioner determines that the applicant meets the minimum criteria requirements 12.25of subdivision 2 for health data intermediaries or subdivision 3 for health information 12.26organizations. If the commissioner determines that the applicant is not qualified, the 12.27commissioner shall notify the applicant and specify the reasons for disqualification.12.28(d) Upon being granted a certificate of authority to operate as a health information 12.29organization, the organization must operate in compliance with the provisions of this 12.30section. Noncompliance may result in the imposition of a fine or the suspension or 12.31revocation of the certificate of authority according to section 62J.4982.12.32    Subd. 5. Reciprocal agreements between health information exchange entities.12.33(a) Reciprocal agreements between two health information organizations or between a 12.34health information organization and a health data intermediary must include a fair and 12.35equitable model for charges between the entities that:13.1(1) does not impede the secure transmission of transactions necessary to achieve 13.2meaningful use;13.3(2) does not charge a fee for the exchange of meaningful use transactions transmitted 13.4according to nationally recognized standards where no additional value-added service 13.5is rendered to the sending or receiving health information organization or health data 13.6intermediary either directly or on behalf of the client;13.7(3) is consistent with fair market value and proportionately reflects the value-added 13.8services accessed as a result of the agreement; and13.9(4) prevents health care stakeholders from being charged multiple times for the 13.10same service.13.11(b) Reciprocal agreements must include comparable quality of service standards that 13.12ensure equitable levels of services.13.13(c) Reciprocal agreements are subject to review and approval by the commissioner.13.14(d) Nothing in this section precludes a state-certified health information organization 13.15or state-certified health data intermediary from entering into contractual agreements for 13.16the provision of value-added services beyond meaningful use. 13.17(e) The commissioner of human services or health, when providing access to data or 13.18services through a certified health information organization, must offer the same data or 13.19services directly through any certified health information organization at the same pricing, 13.20if the health information organization pays for all connection costs to the state data or 13.21service. For all external connectivity to the respective agencies through existing or future 13.22information exchange implementations, the respective agency shall establish the required 13.23connectivity methods as well as protocol standards to be utilized.13.24    Subd. 6.State participation in health information exchange.(a) A state agency 13.25that connects to a health information exchange service provider for the purpose of 13.26exchanging meaningful use transactions must ensure that the contracted health information 13.27exchange service provider has reciprocal agreements in place as required by this section. 13.28The reciprocal agreements must provide equal access to information supplied by the 13.29agency as necessary for meaningful use by the participating entities of the other health 13.30information service providers.13.31(b) No data obtained from the electronic transmission of patients' medical records 13.32may be used by any government entity to restrict access to medical treatment options that 13.33are currently available to patients, based on age, quality of life, or category of illness.13.34    Sec. 8. [62J.4982] ENFORCEMENT AUTHORITY; COMPLIANCE.14.1    Subdivision 1. Penalties and enforcement. (a) The commissioner may, for any 14.2violation of statute or rule applicable to a health information exchange service provider, 14.3levy an administrative penalty in an amount up to $25,000 for each violation. In 14.4determining the level of an administrative penalty, the commissioner shall consider the 14.5following factors:14.6(1) the number of participating entities affected by the violation;14.7(2) the effect of the violation on participating entities' access to health information 14.8exchange services;14.9(3) if only one participating entity is affected, the effect of the violation on the 14.10patients of that entity;14.11(4) whether the violation is an isolated incident or part of a pattern of violations;14.12(5) the economic benefits derived by the health information organization or a health 14.13data intermediary by virtue of the violation;14.14(6) whether the violation hindered or facilitated an individual's ability to obtain 14.15health care;14.16(7) whether the violation was intentional;14.17(8) whether the violation was beyond the direct control of the health information 14.18exchange service provider;14.19(9) any history of prior compliance with the provisions of this section, including 14.20violations;14.21(10) whether and to what extent the health information exchange service provider 14.22attempted to correct previous violations;14.23(11) how the health information exchange service provider responded to technical 14.24assistance from the commissioner provided in the context of a compliance effort; and14.25(12) the financial condition of the health information exchange service provider 14.26including, but not limited to, whether the health information exchange service provider 14.27had financial difficulties that affected its ability to comply or whether the imposition of an 14.28administrative monetary penalty would jeopardize the ability of the health information 14.29exchange service provider to continue to deliver health information exchange services.14.30The commissioner shall give reasonable notice in writing to the health information 14.31exchange service provider of the intent to levy the penalty and the reasons for them. 14.32A health information exchange service provider may have 15 days within which to 14.33contest whether the facts found constitute a violation of sections 62J.4981 and 62J.4982, 14.34according to the contested case and judicial review provisions of sections 14.57 to 14.69.14.35(b) If the commissioner has reason to believe that a violation of section 62J.4981 or 14.3662J.4982 has occurred or is likely, the commissioner may confer with the persons involved 15.1before commencing action under subdivision 2. The commissioner may notify the health 15.2information exchange service provider and the representatives, or other persons who 15.3appear to be involved in the suspected violation, to arrange a voluntary conference with 15.4the alleged violators or their authorized representatives. The purpose of the conference is 15.5to attempt to learn the facts about the suspected violation and, if it appears that a violation 15.6has occurred or is threatened, to find a way to correct or prevent it. The conference is 15.7not governed by any formal procedural requirements, and may be conducted as the 15.8commissioner considers appropriate.15.9(c) The commissioner may issue an order directing a health information exchange 15.10service provider or a representative of a health information exchange service provider to 15.11cease and desist from engaging in any act or practice in violation of sections 62J.4981 15.12and 62J.4982.15.13(d) Within 20 days after service of the order to cease and desist, a health information 15.14exchange service provider may contest whether the facts found constitute a violation 15.15of sections 62J.4981 and 62J.4982 according to the contested case and judicial review 15.16provisions of sections 14.57 to 14.69.15.17(e) In the event of noncompliance with a cease and desist order issued under this 15.18subdivision, the commissioner may institute a proceeding to obtain injunctive relief or 15.19other appropriate relief in Ramsey County District Court.15.20    Subd. 2. Suspension or revocation of certificates of authority.(a) The 15.21commissioner may suspend or revoke a certificate of authority issued to a health 15.22data intermediary or health information organization under section 62J.4981 if the 15.23commissioner finds that:15.24(1) the health information exchange service provider is operating significantly 15.25in contravention of its basic organizational document, or in a manner contrary to that 15.26described in and reasonably inferred from any other information submitted under section 15.2762J.4981, unless amendments to the submissions have been filed with and approved by 15.28the commissioner;15.29(2) the health information exchange service provider is unable to fulfill its 15.30obligations to furnish comprehensive health information exchange services as required 15.31under its health information exchange contract;15.32(3) the health information exchange service provider is no longer financially solvent 15.33or may not reasonably be expected to meet its obligations to participating entities;15.34(4) the health information exchange service provider has failed to implement the 15.35complaint system in a manner designed to reasonably resolve valid complaints;16.1(5) the health information exchange service provider, or any person acting with its 16.2sanction, has advertised or merchandised its services in an untrue, misleading, deceptive, 16.3or unfair manner;16.4(6) the continued operation of the health information exchange service provider 16.5would be hazardous to its participating entities or the patients served by the participating 16.6entities; or16.7(7) the health information exchange service provider has otherwise failed to 16.8substantially comply with section 62J.4981 or with any other statute or administrative 16.9rule applicable to health information exchange service providers, or has submitted false 16.10information in any report required under sections 62J.498 to 62J.4982.16.11(b) A certificate of authority shall be suspended or revoked only after meeting the 16.12requirements of subdivision 3.16.13(c) If the certificate of authority of a health information exchange service provider is 16.14suspended, the health information exchange service provider shall not, during the period 16.15of suspension, enroll any additional participating entities, and shall not engage in any 16.16advertising or solicitation.16.17(d) If the certificate of authority of a health information exchange service provider is 16.18revoked, the organization shall proceed, immediately following the effective date of the 16.19order of revocation, to wind up its affairs, and shall conduct no further business except as 16.20necessary to the orderly conclusion of the affairs of the organization. The organization 16.21shall engage in no further advertising or solicitation. The commissioner may, by written 16.22order, permit further operation of the organization as the commissioner finds to be in the 16.23best interest of participating entities, to the end that participating entities will be given the 16.24greatest practical opportunity to access continuing health information exchange services.16.25    Subd. 3. Denial, suspension, and revocation; administrative procedures. (a) 16.26When the commissioner has cause to believe that grounds for the denial, suspension, 16.27or revocation of a certificate of authority exist, the commissioner shall notify the 16.28health information exchange service provider in writing stating the grounds for denial, 16.29suspension, or revocation and setting a time within 20 days for a hearing on the matter.16.30(b) After a hearing before the commissioner at which the health information 16.31exchange service provider may respond to the grounds for denial, suspension, or 16.32revocation, or upon the failure of the health information exchange service provider to 16.33appear at the hearing, the commissioner shall take action as deemed necessary and shall 16.34issue written findings and mail them to the health information exchange service provider.16.35(c) If suspension, revocation, or administrative penalty is proposed according 16.36to this section, the commissioner must deliver, or send by certified mail with return 17.1receipt requested, to the health information exchange service provider written notice of 17.2the commissioner's intent to impose a penalty. This notice of proposed determination 17.3must include:17.4(1) a reference to the statutory basis for the penalty;17.5(2) a description of the findings of fact regarding the violations with respect to 17.6which the penalty is proposed;17.7(3) the nature and amount of the proposed penalty;17.8(4) any circumstances described in subdivision 1, paragraph (a), that were considered 17.9in determining the amount of the proposed penalty;17.10(5) instructions for responding to the notice, including a statement of the health 17.11information exchange service provider's right to a contested case proceeding and a 17.12statement that failure to request a contested case proceeding within 30 calendar days 17.13permits the imposition of the proposed penalty; and17.14(6) the address to which the contested case proceeding request must be sent.17.15    Subd. 4. Coordination.(a) The commissioner shall, to the extent possible, seek 17.16the advice of the Minnesota e-Health Advisory Committee, in the review and update of 17.17criteria for the certification and recertification of health information exchange service 17.18providers when implementing sections 62J.498 to 62J.4982.17.19(b) By January 1, 2011, the commissioner shall report to the governor and the chairs 17.20of the senate and house of representatives committees having jurisdiction over health 17.21information policy issues on the status of health information exchange in Minnesota, and 17.22provide recommendations on further action necessary to facilitate the secure electronic 17.23movement of health information among health providers that will enable Minnesota 17.24providers and hospitals to meet meaningful use exchange requirements.17.25    Subd. 5. Fees and monetary penalties. (a) The commissioner shall assess fees 17.26on every health information exchange service provider subject to sections 62J.4981 and 17.2762J.4982 as follows:17.28(1) filing an application for certificate of authority to operate as a health information 17.29organization, $10,500;17.30(2) filing an application for certificate of authority to operate as a health data 17.31intermediary, $7,000;17.32(3) annual health information organization certificate fee, $14,000;17.33(4) annual health data intermediary certificate fee, $7,000; and17.34(5) fees for other filings, as specified by rule.18.1(b) Administrative monetary penalties imposed under this subdivision shall 18.2be credited to an account in the special revenue fund and are appropriated to the 18.3commissioner for the purposes of sections 62J.498 to 62J.4982.18.4    Sec. 9. FEDERAL FUNDING.18.5To the extent that the commissioner of health applies for additional federal funding 18.6to support the commissioner's responsibilities of developing and maintaining state-level 18.7health information exchange under section 3013 of the HITECH Act, the commissioner of 18.8health shall ensure that applications are made through an open process that provides health 18.9information exchange service providers equal opportunity to receive funding.18.10    Sec. 10. NONSUBMISSION OF HEALTH CARE CLAIM BY 18.11CLEARINGHOUSE; SIGNIFICANT DISRUPTION.18.12A situation shall be considered a significant disruption to normal operations that 18.13materially affects the provider's or facility's ability to conduct business in a normal manner 18.14and to submit claims on a timely basis under Minnesota Statutes, section 62Q.75, if:18.15(1) a clearinghouse loses, or otherwise does not submit, a health care claim as 18.16required by Minnesota Statutes, section 62J.536; and18.17(2) the provider or facility can substantiate that it submitted a complete claim to the 18.18clearinghouse within provisions stated in contract or six months of the date of service, 18.19whichever is less.18.20This section expires January 1, 2012.18.21    Sec. 11. APPROPRIATION; HEALTH INFORMATION EXCHANGE 18.22OVERSIGHT.18.23$104,000 in fiscal year 2011 is appropriated from the state government special 18.24revenue fund to the commissioner of health for the duties required under Minnesota 18.25Statutes, sections 62J.498 to 62J.4982. Base funding shall be $97,000 in fiscal year 2012 18.26and $97,000 in fiscal year 2013.