Florida Senate - 2009                        COMMITTEE AMENDMENT
       Bill No. SB 162
       
       
       
       
       
       
                                Barcode 518288                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/11/2009           .                                
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       The Committee on Health Regulation (Bennett) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (4) of section 395.3025, Florida
    6  Statutes, is amended to read:
    7         395.3025 Patient and personnel records; copies;
    8  examination.—
    9         (4) Patient records are confidential and must not be
   10  disclosed without the consent of the patient or his or her legal
   11  representative person to whom they pertain, but appropriate
   12  disclosure may be made without such consent to:
   13         (a) Licensed facility personnel, and attending physicians,
   14  or other health care practitioners and providers currently
   15  involved in the care or treatment of the patient for use only in
   16  connection with the treatment of the patient.
   17         (b) Licensed facility personnel only for administrative
   18  purposes or risk management and quality assurance functions.
   19         (c) The agency, for purposes of health care cost
   20  containment.
   21         (d) In any civil or criminal action, unless otherwise
   22  prohibited by law, upon the issuance of a subpoena from a court
   23  of competent jurisdiction and proper notice by the party seeking
   24  such records to the patient or his or her legal representative.
   25         (e) The agency upon subpoena issued pursuant to s. 456.071,
   26  but the records obtained thereby must be used solely for the
   27  purpose of the agency and the appropriate professional board in
   28  its investigation, prosecution, and appeal of disciplinary
   29  proceedings. If the agency requests copies of the records, the
   30  facility shall charge no more than its actual copying costs,
   31  including reasonable staff time. The records must be sealed and
   32  must not be available to the public pursuant to s. 119.07(1) or
   33  any other statute providing access to records, nor may they be
   34  available to the public as part of the record of investigation
   35  for and prosecution in disciplinary proceedings made available
   36  to the public by the agency or the appropriate regulatory board.
   37  However, the agency must make available, upon written request by
   38  a practitioner against whom probable cause has been found, any
   39  such records that form the basis of the determination of
   40  probable cause.
   41         (f) The Department of Health or its agent, for the purpose
   42  of establishing and maintaining a trauma registry and for the
   43  purpose of ensuring that hospitals and trauma centers are in
   44  compliance with the standards and rules established under ss.
   45  395.401, 395.4015, 395.4025, 395.404, 395.4045, and 395.405, and
   46  for the purpose of monitoring patient outcome at hospitals and
   47  trauma centers that provide trauma care services.
   48         (g) The Department of Children and Family Services or its
   49  agent, for the purpose of investigations of cases of abuse,
   50  neglect, or exploitation of children or vulnerable adults.
   51         (h) The State Long-Term Care Ombudsman Council and the
   52  local long-term care ombudsman councils, with respect to the
   53  records of a patient who has been admitted from a nursing home
   54  or long-term care facility, when the councils are conducting an
   55  investigation involving the patient as authorized under part II
   56  of chapter 400, upon presentation of identification as a council
   57  member by the person making the request. Disclosure under this
   58  paragraph shall only be made after a competent patient or the
   59  patient’s representative has been advised that disclosure may be
   60  made and the patient has not objected.
   61         (i) A local trauma agency or a regional trauma agency that
   62  performs quality assurance activities, or a panel or committee
   63  assembled to assist a local trauma agency or a regional trauma
   64  agency in performing quality assurance activities. Patient
   65  records obtained under this paragraph are confidential and
   66  exempt from s. 119.07(1) and s. 24(a), Art. I of the State
   67  Constitution.
   68         (j) Organ procurement organizations, tissue banks, and eye
   69  banks required to conduct death records reviews pursuant to s.
   70  395.2050.
   71         (k) The Medicaid Fraud Control Unit in the Department of
   72  Legal Affairs pursuant to s. 409.920.
   73         (l) The Department of Financial Services, or an agent,
   74  employee, or independent contractor of the department who is
   75  auditing for unclaimed property pursuant to chapter 717.
   76         (m) A regional poison control center for purposes of
   77  treating a poison episode under evaluation, case management of
   78  poison cases, or compliance with data collection and reporting
   79  requirements of s. 395.1027 and the professional organization
   80  that certifies poison control centers in accordance with federal
   81  law.
   82         Section 2. Section 408.051, Florida Statutes, is created to
   83  read:
   84         408.051Florida Electronic Health Records Exchange Act.—
   85         (1)SHORT TITLE.—This section may be cited as the “Florida
   86  Electronic Health Records Exchange Act.”
   87         (2)DEFINITIONS.—As used in this section, the term:
   88         (a)“Electronic health record” means a record of a person’s
   89  medical treatment which is created by a licensed health care
   90  provider and stored in an interoperable and accessible digital
   91  format.
   92         (b)“Electronic health records system” means an application
   93  environment consisting of at least two of the following
   94  components: a clinical data repository, clinical decision
   95  support, a controlled medical vocabulary, a computerized
   96  provider order entry, a pharmacy, or clinical documentation. The
   97  application must be used by health care practitioners to
   98  document, monitor, and manage health care delivery within a
   99  health care delivery system and must be capable of
  100  interoperability within a health information exchange.
  101         (c)“Health information exchange” means an electronic
  102  health records system used to acquire, process, and transmit
  103  electronic health records that can be shared in real time among
  104  authorized health care providers, health care facilities, health
  105  insurers, and other recipients, as authorized by law, to
  106  facilitate the provision of health care services.
  107         (d)“Health record” means any information, recorded in any
  108  form or medium, which relates to the past, present, or future
  109  health of an individual for the primary purpose of providing
  110  health care and health-related services.
  111         (e)“Identifiable health record” means any health record
  112  that identifies the patient or with respect to which there is a
  113  reasonable basis to believe the information can be used to
  114  identify the patient.
  115         (f)“Patient” means an individual who has sought, is
  116  seeking, is undergoing, or has undergone care or treatment in a
  117  health care facility or by a health care provider.
  118         (g)“Patient representative” means a parent of a minor
  119  patient, a court-appointed guardian for the patient, a health
  120  care surrogate, or a person holding a power of attorney or
  121  notarized consent appropriately executed by the patient granting
  122  permission to a health care facility or health care provider to
  123  disclose the patient’s health care information to that person.
  124  In the case of a deceased patient, the term also means the
  125  personal representative of the estate of the deceased patient;
  126  the deceased patient’s surviving spouse, surviving parent, or
  127  surviving adult child; the parent or guardian of a surviving
  128  minor child of the deceased patient; or the attorney for any
  129  such person.
  130         (3)EMERGENCY RELEASE OF IDENTIFIABLE HEALTH RECORD.—A
  131  health care provider may release or access an identifiable
  132  health record of a patient without the patient’s consent for use
  133  in the treatment of the patient for an emergency medical
  134  condition, as defined in s. 395.002(8), when the health care
  135  provider is unable to obtain the patient’s consent due to the
  136  patient’s condition or the nature of the situation requiring
  137  immediate medical attention. A health care provider who in good
  138  faith releases or accesses an identifiable health record of a
  139  patient in any form or medium under this section is immune from
  140  civil liability for accessing or releasing an identifiable
  141  health record.
  142         (4)UNIVERSAL PATIENT AUTHORIZATION FORM.—
  143         (a)By July 1, 2010, the agency shall develop forms in both
  144  paper and electronic formats which may be used by a health care
  145  provider to document patient authorization for the use or
  146  release, in any form or medium, of an identifiable health
  147  record.
  148         (b)The agency shall adopt by rule the authorization form
  149  and accompanying instructions and make the authorization form
  150  available on the agency’s website, pursuant to s. 408.05.
  151         (c)A health care provider receiving an authorization form
  152  containing a request for the release of an identifiable health
  153  record shall accept the form as a valid authorization to release
  154  an identifiable health record. A health care provider may elect
  155  to accept the authorization form in either electronic or paper
  156  format or both. The individual or entity that submits the
  157  authorization form containing a request for the release of an
  158  identifiable health record shall determine which format is
  159  accepted by the health care provider prior to submitting the
  160  form.
  161         (d)An individual or entity that submits a request for an
  162  identifiable health record is not required under this section to
  163  use the authorization form adopted and distributed by the
  164  agency.
  165         (e)The exchange by a health care provider of an
  166  identifiable health record upon receipt of an authorization form
  167  completed and submitted in accordance with agency instructions
  168  creates a rebuttable presumption that the release of the
  169  identifiable health record was appropriate. A health care
  170  provider that releases an identifiable health record in reliance
  171  on the information provided to the health care provider on a
  172  properly completed authorization form does not violate any right
  173  of confidentiality and is immune from liability under this
  174  section.
  175         (f)A health care provider that exchanges an identifiable
  176  health record upon receipt of an authorization form shall not be
  177  deemed to have violated or waived any privilege protected under
  178  the statutory or common law of this state.
  179         (5)PENALTIES.—A person who does any of the following may
  180  be liable to the patient or a health care provider that has
  181  released an identifiable health record in reliance on an
  182  authorization form presented to the health care provider by the
  183  person for compensatory damages caused by an unauthorized
  184  release, plus reasonable attorney’s fees and costs:
  185         (a)Forges a signature on an authorization form or
  186  materially alters the authorization form of another person
  187  without the person’s authorization; or
  188         (b)Obtains an authorization form or an identifiable health
  189  record of another person under false pretenses.
  190         Section 3. Section 408.0512, Florida Statutes, is created
  191  to read:
  192         408.0512Electronic medical records system adoption loan
  193  program.—
  194         (1)Subject to a specific appropriation, the agency shall
  195  operate an electronic medical records system adoption loan
  196  program for the purpose of providing a one-time, no-interest
  197  loan to eligible physicians licensed under chapter 458 or
  198  chapter 459 or to an eligible business entity whose shareholders
  199  are licensed under chapter 458 or chapter 459 for the initial
  200  costs of implementing an electronic medical records system.
  201         (2)In order to be eligible for a loan under this section,
  202  each physician must demonstrate that he or she has practiced
  203  continuously within the state for the previous 3 years.
  204         (3)The agency may not provide a loan to a physician who
  205  has or a business entity whose physician has:
  206         (a)Been found guilty of a violation of s. 456.072(1) or
  207  been disciplined under the applicable licensing chapter in the
  208  previous 5 years.
  209         (b)Been found guilty of or entered a plea of guilty or
  210  nolo contendere to a violation of s. 409.920 or s. 409.9201.
  211         (c)Been sanctioned pursuant to s. 409.913 for fraud or
  212  abuse.
  213         (4)A loan may be provided to an eligible physician or
  214  business entity in a lump-sum amount to pay for the costs of
  215  purchasing hardware and software, subscription services,
  216  professional consultation, and staff training. The agency shall
  217  provide guidance to loan recipients by providing, at a minimum,
  218  a list of electronic medical records systems recognized or
  219  certified by national standards-setting entities as capable of
  220  being used to communicate with a health information exchange.
  221         (5)The agency shall distribute a minimum of 25 percent of
  222  funds appropriated to this program to physicians or business
  223  entities operating within a rural county as defined in s.
  224  288.106(1)(r).
  225         (6)The agency shall, by rule, develop standard terms and
  226  conditions for use in the loan program. At a minimum, these
  227  terms and conditions shall require:
  228         (a)Loan repayment by the physician or business entity
  229  within a reasonable period of time, which may not be longer than
  230  72 months after the funding of the loan.
  231         (b)Equal periodic payments that commence within 3 months
  232  after the funding of the loan.
  233         (c)The eligible physician or business entity to execute a
  234  promissory note and a security agreement in favor of the state.
  235  The security agreement shall be a purchase-money security
  236  interest pledging as collateral for the loan the specific
  237  hardware and software purchased with the loan proceeds. The
  238  agency shall prepare and record a financing statement under
  239  chapter 679. The physician or business entity shall be
  240  responsible for paying the cost of recording the financing
  241  statement. The security agreement shall further require that the
  242  physician or business entity pay all collection costs, including
  243  attorney’s fees.
  244         (7)The agency shall further require the physician or
  245  business entity to provide additional security under one of the
  246  following paragraphs:
  247         (a)An irrevocable letter of credit, as defined in chapter
  248  675, in an amount equal to the amount of the loan.
  249         (b)An escrow account consisting of cash or assets eligible
  250  for deposit in accordance with s. 625.52 in an amount equal to
  251  the amount of the loan. If the escrow agent is responsible for
  252  making the periodic payments on the loan, the required escrow
  253  balance may be diminished as payments are made.
  254         (c)A pledge of the accounts receivable of the physician or
  255  business entity. This pledge shall be reflected on the financing
  256  statement.
  257         (8)All payments received from or on behalf of a physician
  258  or business entity under this program shall be deposited into
  259  the agency’s Administrative Trust Fund to be used to fund new
  260  loans.
  261         (9)If a physician or business entity that has received a
  262  loan under this section ceases to provide care or services to
  263  patients, or if the physician or business entity defaults in any
  264  payment and the default continues for 30 days, the entire loan
  265  balance shall be immediately due and payable and shall bear
  266  interest from that point forward at the rate of 18 percent
  267  annually. Upon default, the agency may offset any moneys owed to
  268  the physician or business entity from the state and apply the
  269  offset against the outstanding balance.
  270         (10)If a physician defaults in any payment and if the
  271  default continues for 30 days, the default constitutes grounds
  272  for disciplinary action under chapter 458 or chapter 459 and
  273  under s. 456.072(1)(k).
  274         Section 4. Subsection (2) of section 483.181, Florida
  275  Statutes, is amended to read:
  276         483.181 Acceptance, collection, identification, and
  277  examination of specimens.—
  278         (2) The results of a test must be reported directly to the
  279  licensed practitioner or other authorized person who requested
  280  it, and appropriate disclosure may be made by the clinical
  281  laboratory without a patient’s consent to other health care
  282  practitioners and providers involved in the care or treatment of
  283  the patient as specified in s. 456.057(7)(a). The report must
  284  include the name and address of the clinical laboratory in which
  285  the test was actually performed, unless the test was performed
  286  in a hospital laboratory and the report becomes an integral part
  287  of the hospital record.
  288         Section 5. This act shall take effect upon becoming a law.
  289  
  290  ================= T I T L E  A M E N D M E N T ================
  291         And the title is amended as follows:
  292         Delete everything before the enacting clause
  293  and insert:
  294                        A bill to be entitled                      
  295         An act relating to electronic health records; amending
  296         s. 395.3025, F.S.; expanding access to a patient’s
  297         health records in order to facilitate the exchange of
  298         data between certain health care facility personnel,
  299         practitioners, and providers and attending physicians;
  300         creating s. 408.051, F.S.; creating the “Florida
  301         Electronic Health Records Exchange Act”; providing
  302         definitions; authorizing the release of certain health
  303         records under emergency medical conditions without
  304         patient consent; providing for immunity from civil
  305         liability; providing duties of the Agency for Health
  306         Care Administration with regard to the availability of
  307         specified information on the agency’s Internet
  308         website; requiring the agency to develop and implement
  309         a universal patient authorization form in paper and
  310         electronic formats for the release of certain health
  311         records; providing procedures for use of the form;
  312         providing penalties; providing for certain
  313         compensation and attorney’s fees and costs; creating
  314         s. 408.0512, F.S.; requiring the Agency for Health
  315         Care Administration to operate an electronic medical
  316         records system adoption loan program, subject to
  317         specific appropriation; providing eligibility
  318         criteria; prohibiting the agency from providing loans
  319         to physicians or businesses that have violated certain
  320         provisions of law; providing for uses of the loan;
  321         providing guidelines for distribution of funds by the
  322         agency; requiring the agency to develop terms and
  323         conditions for the loan program; requiring physicians
  324         and businesses to provide additional security
  325         agreements under certain circumstances; providing for
  326         payments to be deposited in the agency‘s
  327         Administrative Trust Fund; establishing procedures for
  328         managing cases of default; amending s. 483.181, F.S.;
  329         expanding access to laboratory reports in order to
  330         facilitate the exchange of data between certain health
  331         care practitioners and providers; providing an
  332         effective date.
  333  
  334         WHEREAS, the use of electronic health information
  335  technology has been proven to benefit consumers by increasing
  336  the quality and efficiency of health care delivery throughout
  337  the state, and
  338         WHEREAS, clear and concise standards for sharing privacy
  339  protected medical information among authorized health care
  340  providers will enable providers to have cost-effective access to
  341  the medical information needed to make sound decisions about
  342  health care, and
  343         WHEREAS, maintaining the privacy and security of
  344  identifiable health records is essential to the adoption of
  345  procedures for sharing of electronic health records among health
  346  care providers involved in the treatment of patients, NOW,
  347  THEREFORE,