1

A bill to be entitled

2

An act relating to electronic health records; amending s.

3

395.3025, F.S.; expanding access to a patient's medical

4

records to facilitate electronic exchange of data between

5

certain health care facilities, practitioners, and

6

providers and attending physicians; revising provisions

7

relating to the disclosure of patient records to conform

8

to changes made by the act; authorizing a health

9

information exchange to receive patient medical records

10

without patient consent for processing and transmission of

11

electronic medical records; amending s. 408.05, F.S.;

12

removing the responsibility of the Agency for Health Care

13

Administration for monitoring certain grants; creating s.

14

408.051, F.S.; creating the "Florida eHealth Initiative

15

Act"; providing legislative intent; providing definitions;

16

requiring the agency to award and monitor grants to

17

certain health information organizations; providing

18

rulemaking authority regarding establishment of

19

eligibility criteria; establishing the Electronic Medical

20

Records System Adoption Loan Program; providing

21

eligibility criteria; providing rulemaking authority

22

regarding terms and conditions for the granting of loans;

23

creating the Florida Health Information Exchange Advisory

24

Council; providing for purpose, membership, terms of

25

office, and duties of the council; requiring the Florida

26

Center for Health Information and Policy Analysis to

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provide staff support; requiring reports to the Governor

28

and Legislature; providing for future repeal of s.

29

408.051, F.S., and abolition of the council; providing

30

duties of the agency with regard to availability of

31

specified information on the agency's Internet website;

32

requiring the agency to develop and implement a plan to

33

promote participation in regional and statewide health

34

information exchanges; requiring the Office of Program

35

Policy Analysis and Government Accountability to complete

36

an independent evaluation of the grants program

37

administered by the agency and submit the report to the

38

Governor and Legislature by a certain date; amending s.

39

408.062, F.S.; removing the responsibility of the agency

40

for developing an electronic health information network;

41

amending s. 483.181, F.S.; expanding access to laboratory

42

reports to facilitate electronic exchange of data between

43

certain health care practitioners and providers; providing

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an effective date.

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46

Be It Enacted by the Legislature of the State of Florida:

47

48

     Section 1.  Subsection (4) of section 395.3025, Florida

49

Statutes, is amended to read:

50

     395.3025  Patient and personnel records; copies;

51

examination.--

52

     (4)  Patient records are confidential and must not be

53

disclosed without the consent of the patient or his or her legal

54

representative person to whom they pertain, but appropriate

55

disclosure may be made without such consent to:

56

     (a) Licensed facility personnel, and attending physicians,

57

or other health care practitioners and providers currently

58

involved in the care or treatment of the patient for use only in

59

connection with the treatment of the patient.

60

     (b)  Licensed facility personnel only for administrative

61

purposes or risk management and quality assurance functions.

62

     (c)  The agency, for purposes of health care cost

63

containment.

64

     (d)  In any civil or criminal action, unless otherwise

65

prohibited by law, upon the issuance of a subpoena from a court

66

of competent jurisdiction and proper notice by the party seeking

67

such records to the patient or his or her legal representative.

68

     (e) The department agency upon subpoena issued pursuant to

69

s. 456.071, but the records obtained thereby must be used solely

70

for the purpose of the department agency and the appropriate

71

professional board in its investigation, prosecution, and appeal

72

of disciplinary proceedings. If the department agency requests

73

copies of the records, the facility shall charge no more than its

74

actual copying costs, including reasonable staff time. The

75

records must be sealed and must not be available to the public

76

pursuant to s. 119.07(1) or any other statute providing access to

77

records, nor may they be available to the public as part of the

78

record of investigation for and prosecution in disciplinary

79

proceedings made available to the public by the department agency

80

or the appropriate regulatory board. However, the department

81

agency must make available, upon written request by a

82

practitioner against whom probable cause has been found, any such

83

records that form the basis of the determination of probable

84

cause.

85

     (f) The department of Health or its agent, for the purpose

86

of establishing and maintaining a trauma registry and for the

87

purpose of ensuring that hospitals and trauma centers are in

88

compliance with the standards and rules established under ss.

89

395.401, 395.4015, 395.4025, 395.404, 395.4045, and 395.405, and

90

for the purpose of monitoring patient outcome at hospitals and

91

trauma centers that provide trauma care services.

92

     (g)  The Department of Children and Family Services or its

93

agent, for the purpose of investigations of cases of abuse,

94

neglect, or exploitation of children or vulnerable adults.

95

     (h)  The State Long-Term Care Ombudsman Council and the

96

local long-term care ombudsman councils, with respect to the

97

records of a patient who has been admitted from a nursing home or

98

long-term care facility, when the councils are conducting an

99

investigation involving the patient as authorized under part II

100

of chapter 400, upon presentation of identification as a council

101

member by the person making the request. Disclosure under this

102

paragraph shall only be made after a competent patient or the

103

patient's representative has been advised that disclosure may be

104

made and the patient has not objected.

105

     (i)  A local trauma agency or a regional trauma agency that

106

performs quality assurance activities, or a panel or committee

107

assembled to assist a local trauma agency or a regional trauma

108

agency in performing quality assurance activities. Patient

109

records obtained under this paragraph are confidential and exempt

110

from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

111

     (j)  Organ procurement organizations, tissue banks, and eye

112

banks required to conduct death records reviews pursuant to s.

113

395.2050.

114

     (k)  The Medicaid Fraud Control Unit in the Department of

115

Legal Affairs pursuant to s. 409.920.

116

     (l)  The Department of Financial Services, or an agent,

117

employee, or independent contractor of the department who is

118

auditing for unclaimed property pursuant to chapter 717.

119

     (m)  A regional poison control center for purposes of

120

treating a poison episode under evaluation, case management of

121

poison cases, or compliance with data collection and reporting

122

requirements of s. 395.1027 and the professional organization

123

that certifies poison control centers in accordance with federal

124

law.

125

     (n) A health information exchange for the sole purpose of

126

processing and transmitting electronic medical records among

127

persons or entities authorized to have access to those records

128

for purposes of medical treatment only and not for sale or

129

brokering for marketing purposes.

130

     Section 2.  Subsection (4) of section 408.05, Florida

131

Statutes, is amended to read:

132

     408.05  Florida Center for Health Information and Policy

133

Analysis.--

134

     (4)  TECHNICAL ASSISTANCE.--

135

     (a)  The center shall provide technical assistance to

136

persons or organizations engaged in health planning activities in

137

the effective use of statistics collected and compiled by the

138

center. The center shall also provide the following additional

139

technical assistance services:

140

     1.  Establish procedures identifying the circumstances under

141

which, the places at which, the persons from whom, and the

142

methods by which a person may secure data from the center,

143

including procedures governing requests, the ordering of

144

requests, timeframes for handling requests, and other procedures

145

necessary to facilitate the use of the center's data. To the

146

extent possible, the center should provide current data timely in

147

response to requests from public or private agencies.

148

     2.  Provide assistance to data sources and users in the

149

areas of database design, survey design, sampling procedures,

150

statistical interpretation, and data access to promote improved

151

health-care-related data sets.

152

     3.  Identify health care data gaps and provide technical

153

assistance to other public or private organizations for meeting

154

documented health care data needs.

155

     4.  Assist other organizations in developing statistical

156

abstracts of their data sets that could be used by the center.

157

     5.  Provide statistical support to state agencies with

158

regard to the use of databases maintained by the center.

159

     6.  To the extent possible, respond to multiple requests for

160

information not currently collected by the center or available

161

from other sources by initiating data collection.

162

     7.  Maintain detailed information on data maintained by

163

other local, state, federal, and private agencies in order to

164

advise those who use the center of potential sources of data

165

which are requested but which are not available from the center.

166

     8.  Respond to requests for data which are not available in

167

published form by initiating special computer runs on data sets

168

available to the center.

169

     9.  Monitor innovations in health information technology,

170

informatics, and the exchange of health information and maintain

171

a repository of technical resources to support the development of

172

a statewide health information exchange network.

173

     (b) The agency shall administer, manage, and monitor grants

174

to not-for-profit organizations, regional health information

175

organizations, public health departments, or state agencies that

176

submit proposals for planning, implementation, or training

177

projects to advance the development of a health information

178

network. Any grant contract shall be evaluated to ensure the

179

effective outcome of the health information project.

180

     (b)(c) The agency shall initiate, oversee, manage, and

181

evaluate the integration of health care data from each state

182

agency that collects, stores, and reports on health care issues

183

and make that data available to any health care practitioner

184

through a statewide state health information exchange network.

185

     Section 3.  Section 408.051, Florida Statutes, is created to

186

read:

187

     408.051 Florida eHealth Initiative Act.--

188

     (1) SHORT TITLE.--This section may be cited as the "Florida

189

eHealth Initiative Act."

190

     (2) LEGISLATIVE INTENT.--The Legislature recognizes that

191

the exchange of electronic medical records will benefit consumers

192

by increasing the quality and efficiency of health care

193

throughout the state. It is the intent of the Legislature that

194

the state promote and coordinate the establishment of a secure,

195

privacy-protected, and interconnected statewide health

196

information exchange.

197

     (3) DEFINITIONS.--As used in this section, the term:

198

     (a) "Electronic medical record" means a record of a

199

person's medical treatment created by a licensed health care

200

provider and stored in an interoperable and accessible digital

201

format.

202

     (b) "Electronic medical records system" means an

203

application environment composed of at least two of the following

204

systems: a clinical data repository; clinical decision support;

205

controlled medical vocabulary; computerized provider order entry;

206

pharmacy; or clinical documentation. The application must be used

207

by health care practitioners to document, monitor, and manage

208

health care delivery within a health care delivery system and

209

must be capable of interoperability within a health information

210

exchange.

211

     (c) "Health information exchange" means an electronic

212

system used to process or transmit electronic medical records

213

that can be shared in real time among authorized health care

214

providers, health care facilities, health insurers, and other

215

recipients, as authorized by law, to facilitate the provision of

216

health care services.

217

     (d) "Health information organization" means an entity that

218

has a formal structure and established policies and procedures

219

and that serves as a neutral convener of local stakeholders to

220

enable the secure and reliable exchange of electronic medical

221

records among authorized health care stakeholders within a

222

defined geographic region to facilitate improvements in health

223

care quality, safety, and coordination of care.

224

     (4) MATCHING GRANTS.--

225

     (a) Subject to a specific appropriation, the agency shall

226

award and monitor matching grants to health information

227

organizations that submit proposals that advance the development

228

of a statewide health information exchange. Funds awarded under

229

this subsection shall be awarded on the basis of matching each $1

230

of state funds with $1 of local or private funds. Local or

231

private funds may be provided in the form of cash or in-kind

232

support or services. Grants may be awarded within the following

233

categories: development, operation, and collaboration.

234

     (b) The agency shall, by rule, establish specific

235

eligibility criteria for a health information organization to

236

qualify for a grant under this subsection. These criteria shall

237

include, at a minimum, documentation of the following:

238

     1. For development grants, the proposed organizational

239

structure, the level of community support, including a list of

240

key participants, a demonstration of available local or private

241

matching funds, a timeline for development of the health

242

information exchange, and proposed goals and metrics.

243

     2. For operation grants, a demonstration of available local

244

or private matching funds and a detailed business plan, which

245

shall include a timeline for implementation of the health

246

information exchange, policies and procedures to protect the

247

privacy and security of electronic medical records, and proposed

248

goals and metrics.

249

     3. For collaboration grants, a demonstration of available

250

local or private matching funds, memoranda of understanding

251

between at least two health information organizations for the

252

exchange of electronic medical records, a demonstration of

253

consistent utilization of the health information exchange by

254

members within each participating health information

255

organization, and a detailed business plan, which shall include a

256

timeline for the implementation of the exchange of electronic

257

medical records between participating health information

258

organizations, policies and procedures to protect the privacy and

259

security of electronic medical records, and proposed goals and

260

metrics.

261

     (c) Beginning July 1, 2008, the agency may not award a

262

health information organization more than 6 aggregate years of

263

funding.

264

     (d) The agency shall award grants in consultation with the

265

Florida Health Information Exchange Advisory Council.

266

     (5) ELECTRONIC MEDICAL RECORDS SYSTEM ADOPTION LOAN

267

PROGRAM.--

268

     (a) Subject to a specific appropriation, the agency shall

269

operate an Electronic Medical Records System Adoption Loan

270

Program for the purpose of providing a one-time, no-interest loan

271

to eligible physicians licensed under chapter 458 or chapter 459,

272

to an eligible business entity whose shareholders are licensed

273

under chapter 458 or chapter 459, or to an eligible faculty

274

practice plan of a state university for the initial costs of

275

implementing an electronic medical records system.

276

     (b) In order to be eligible for a loan under this

277

subsection, each physician must demonstrate that he or she has

278

practiced continuously within the state for the previous 3 years

279

or that the faculty practice plan has been established.

280

     (c) The agency may not provide a loan to a physician who

281

has or a business entity whose physician shareholder has:

282

     1. Been found guilty of violating s. 456.072(1) or been

283

disciplined under the applicable licensing chapter in the

284

previous 5 years.

285

     2. Been found guilty of or entered a plea of guilty or nolo

286

contendere to a violation of s. 409.920 or s. 409.9201.

287

     3. Been sanctioned pursuant to s. 409.913 for fraud or

288

abuse.

289

     (d) A loan may be provided to an eligible physician,

290

business entity, or faculty practice plan in a lump-sum amount to

291

pay for the costs of purchasing hardware and software,

292

subscription services, professional consultation, and staff

293

training. The agency shall provide guidance to loan recipients by

294

providing, at a minimum, a list of electronic medical record

295

systems recognized or certified by national standards-setting

296

entities as capable of being used to communicate with a health

297

information exchange.

298

     (e) The agency shall distribute a minimum of 25 percent of

299

funds appropriated to this program to physicians or business

300

entities operating within a rural county as defined in s.

301

288.106(1)(r).

302

     (f) The agency shall, by rule, develop standard terms and

303

conditions for use in this program. At a minimum, these terms and

304

conditions shall require:

305

     1. Loan repayment by the physician, business entity, or

306

faculty practice plan within a reasonable period of time, which

307

may not be longer than 72 months after the funding of the loan.

308

     2. Equal periodic payments that commence within 3 months

309

after the funding of the loan.

310

     3. The eligible physician, business entity, or faculty

311

practice plan to execute a promissory note and a security

312

agreement in favor of the state. The security agreement shall be

313

a purchase-money security interest pledging as collateral for the

314

loan the specific hardware and software purchased with the loan

315

proceeds. The agency shall prepare and record a financing

316

statement under chapter 679. The physician or business entity

317

shall pay the cost of recording the financing statement. The

318

security agreement shall further require that the physician or

319

business entity pay all collection costs, including attorney's

320

fees.

321

     (g) The agency shall require the physician or business

322

entity to provide additional security under one of the following

323

subparagraphs:

324

     1. An irrevocable letter of credit, as defined in chapter

325

675, in an amount equal to the amount of the loan.

326

     2. An escrow account consisting of cash or assets eligible

327

for deposit in accordance with s. 625.52 in an amount equal to

328

the amount of the loan. If the escrow agent is responsible for

329

making the periodic payments on the loan, the required escrow

330

balance may be diminished as payments are made.

331

     3. A pledge of the accounts receivables of the physician or

332

business entity. This pledge shall be reflected on the financing

333

statement.

334

     (h) All payments received from or on behalf of a physician

335

or business entity under this program shall be deposited into the

336

agency's Administrative Trust Fund to be used to fund new loans.

337

     (i) If a physician, business entity, or university whose

338

faculty practice plan has received a loan under this section

339

ceases to provide care or services to patients, or if the

340

physician, business entity, or faculty practice plan defaults in

341

any payment and the default continues for 30 days, the entire

342

loan balance shall be immediately due and payable and shall bear

343

interest from that point forward at the rate of 18 percent

344

annually. Upon default, the agency may offset any moneys owed to

345

the physician, business entity, or faculty practice plan from the

346

state and apply the offset against the outstanding balance.

347

     (j) If a physician defaults in any payment and if the

348

default continues for 30 days, the default constitutes grounds

349

for disciplinary action under chapter 458 or chapter 459 and s.

350

456.072(1)(k).

351

     (6) FLORIDA HEALTH INFORMATION EXCHANGE ADVISORY COUNCIL.--

352

     (a) The Florida Health Information Exchange Advisory

353

Council is an advisory council as defined in s. 20.03 and is

354

created adjunct to the agency. The council is subject to the

355

requirements of s. 20.052, except that only state officers and

356

employees shall be reimbursed for per diem and travel expenses

357

pursuant to s. 112.061.

358

     (b) The purpose of the council is to:

359

     1. Promote participation in regional and statewide health

360

information exchanges and adoption of health information

361

technology to support the infrastructure capacity for regional

362

and statewide health information exchanges.

363

     2. Conduct outreach and convene forums to educate

364

stakeholders regarding the benefits of using a health information

365

exchange.

366

     3. Provide guidance to stakeholders regarding the effective

367

use of health information exchanges and standards for protecting

368

the privacy and security of electronic medical records.

369

     (c) The council shall consist of the following members:

370

     1. The Secretary of Health Care Administration, or his or

371

her designee.

372

     2. The State Surgeon General, or his or her designee.

373

     3. Two members appointed by and serving at the pleasure of

374

the Governor, of which:

375

     a. One member must be from the health insurance industry.

376

     b. One member must be a consumer who is a resident of the

377

state.

378

     4. Four members appointed by and serving at the pleasure of

379

the President of the Senate, of which:

380

     a. One member must be from a hospital using an electronic

381

medical records system.

382

     b. One member must be a physician using an electronic

383

medical records system in his or her practice.

384

     c. One member must be a representative of an operating

385

health information organization in the state.

386

     d. One member must be from a federally qualified health

387

center or other rural health organization utilizing an electronic

388

medical records system.

389

     5. Four members appointed by and serving at the pleasure of

390

the Speaker of the House of Representatives, of which:

391

     a. One member must be from a hospital using an electronic

392

medical records system.

393

     b. One member must be a physician using an electronic

394

medical records system in his or her practice.

395

     c. One member must be a representative of an operating

396

health information organization in the state.

397

     d. One member must be from a federally qualified health

398

center or other rural health organization utilizing an electronic

399

medical records system.

400

     (d) A member who is a representative of an operating health

401

information organization in the state must recuse himself or

402

herself during discussion, evaluation, or recommendation of a

403

grant application.

404

     (e) Each member of the council subject to appointment shall

405

be appointed to a term of 4 years following the date of

406

appointment. A vacancy shall be filled by appointment for the

407

remainder of the term. Appointments shall be made within 45 days

408

after the effective date of this section.

409

     (f) The council may meet at the call of the chair or at the

410

request of a majority of its membership, but the council must

411

meet at least quarterly. Meetings of the council may be held via

412

teleconference or other electronic means.

413

     (g) Members shall elect a chair and vice chair annually.

414

     (h) A majority of the members constitutes a quorum and the

415

affirmative vote of a majority of a quorum is necessary to take

416

action.

417

     (i) The council shall develop recommendations to:

418

     1. Establish standards for all state-funded health

419

information exchange efforts. Such standards shall include, but

420

are not limited to, policies and procedures to protect the

421

privacy and security of electronic medical records.

422

     2. Remove barriers, including, but not limited to,

423

technological, regulatory, and financial barriers, which limit

424

participation by health care providers, health care facilities,

425

and health insurers in a health information exchange.

426

     3. Remove barriers that prevent consumers from having

427

access to their electronic medical records.

428

     4. Provide incentives to promote participation by health

429

care providers, health care facilities, and health insurers in

430

health information exchanges.

431

     5. Identify health care data held by state agencies and

432

remove barriers to making that data available to authorized

433

recipients through health information exchanges in a private and

434

secure manner.

435

     6. Increase state agency participation in health

436

information exchanges.

437

     7. Enter into partnerships with other state, regional, and

438

federal entities to promote and coordinate health information

439

exchange efforts.

440

     8. Create a long-term plan for an interoperable statewide

441

network of health information organizations.

442

     9. Consult with experts regarding the use of health

443

information in medical research to ensure that all

444

recommendations take into account the legitimate uses of health

445

care information for biomedical research, drug development,

446

clinical trials, post-approval surveillance, and public health

447

and public agency reporting requirements.

448

449

The council shall establish ad hoc issue-oriented technical

450

workgroups on an as-needed basis to make recommendations to the

451

council.

452

     (j) The Florida Center for Health Information and Policy

453

Analysis within the agency shall provide, within existing

454

resources, staff support to enable the council to carry out its

455

responsibilities under this section.

456

     (k) Beginning July 1, 2009, the council shall annually

457

provide a report to the Governor, the President of the Senate,

458

the Speaker of the House of Representatives, and the chairs of

459

the appropriate substantive committees of the Senate and the

460

House of Representatives which includes, but is not limited to,

461

the recommendations regarding the council's duties and

462

responsibilities. In addition, by July 1, 2010, the council shall

463

recommend a long-term plan to create an interoperable statewide

464

network of health information organizations to the Governor, the

465

President of the Senate, the Speaker of the House of

466

Representatives, and the chairs of the appropriate substantive

467

committees of the Senate and the House of Representatives.

468

     (l) This subsection is repealed and the council shall stand

469

abolished July 1, 2012, unless reviewed and saved from repeal

470

through reenactment by the Legislature.

471

     (7) AGENCY FOR HEALTH CARE ADMINISTRATION; DUTIES.--

472

     (a) The agency shall develop and maintain on its Internet

473

website the following information:

474

     1. Federal and private-sector health information exchange

475

funding programs, including analyses of successful local and

476

state recipients of the programs, as well as unsuccessful local

477

and state applicants of the programs.

478

     2. A clearinghouse of state and national legislative,

479

regulatory, and public awareness activities related to health

480

information exchanges.

481

     (b) The agency shall develop and implement a plan that

482

promotes, at a minimum, participation in regional and statewide

483

health information exchanges and the adoption of electronic

484

medical record systems by physicians through the Electronic

485

Medical Records System Adoption Loan Program, in consultation

486

with the Florida Health Information Exchange Advisory Council,

487

organizations representing allopathic and osteopathic practicing

488

physicians, the Board of Medicine, and the Board of Osteopathic

489

Medicine.

490

     (8) PROGRAM EVALUATION; REPORT.--The Office of Program

491

Policy Analysis and Government Accountability shall complete an

492

independent evaluation of the grants program administered by the

493

agency. The evaluation must include, at a minimum, assessments of

494

the grant evaluation and distribution process; the way in which

495

grant dollars are spent; the level of participation by entities

496

within each grantee's project; the extent of clinical data

497

exchange among entities within each grantee's project; the

498

sources of funding for each grantee; and the feasibility of each

499

grantee achieving long-term sustainability without state grant

500

funding. The evaluation must assess the level at which the

501

current grants program is advancing the development of a

502

statewide health information exchange and recommend other

503

programs that may accomplish the same goal. The report shall be

504

submitted to the Governor, the President of the Senate, the

505

Speaker of the House of Representatives, and the chairs of the

506

relevant committees in the Senate and the House of

507

Representatives no later than July 1, 2009.

508

     Section 4.  Subsection (5) of section 408.062, Florida

509

Statutes, is amended to read:

510

     408.062  Research, analyses, studies, and reports.--

511

     (5) The agency shall develop and implement a strategy for

512

the adoption and use of electronic health records, including the

513

development of an electronic health information network for the

514

sharing of electronic health records among health care

515

facilities, health care providers, and health insurers. The

516

agency may develop rules to facilitate the functionality and

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protect the confidentiality of electronic health records. The

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agency shall report to the Governor, the Speaker of the House of

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Representatives, and the President of the Senate on legislative

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recommendations to protect the confidentiality of electronic

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health records.

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     Section 5.  Subsection (2) of section 483.181, Florida

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Statutes, is amended to read:

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     483.181  Acceptance, collection, identification, and

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examination of specimens.--

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     (2)  The results of a test must be reported directly to the

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licensed practitioner or other authorized person who requested it

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and appropriate disclosure may be made by the clinical laboratory

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without a patient's consent to other health care practitioners

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and providers involved in the care or treatment of the patient

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for use in connection with the treatment of the patient. The

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report must include the name and address of the clinical

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laboratory in which the test was actually performed, unless the

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test was performed in a hospital laboratory and the report

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becomes an integral part of the hospital record.

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     Section 6.  This act shall take effect upon becoming a law.