Florida Senate - 2009                                     SB 162
       
       
       
       By Senator Ring
       
       
       
       
       32-00036-09                                            2009162__
    1                        A bill to be entitled                      
    2         An act relating to electronic health records; amending
    3         s. 395.3025, F.S.; expanding access to a patient's
    4         medical records to facilitate the electronic exchange
    5         of data between certain health care facilities,
    6         practitioners, and providers and attending physicians;
    7         revising terminology regarding disclosure of patient
    8         records to conform to changes made by the act;
    9         amending s. 408.05, F.S.; removing responsibility of
   10         the Agency for Health Care Administration for
   11         monitoring certain grants and health care data;
   12         creating s. 408.051, F.S.; creating the “Florida
   13         eHealth Initiative Act”; providing legislative intent;
   14         providing definitions; requiring the agency to award
   15         and monitor grants to certain health information
   16         organizations; providing rulemaking authority
   17         regarding the establishment of eligibility criteria;
   18         authorizing the agency to operate an Electronic
   19         Medical Records System Adoption Loan Program, subject
   20         to a specific appropriation; providing eligibility
   21         criteria; providing rulemaking authority regarding
   22         terms and conditions for the granting of loans;
   23         creating the Florida Health Information Exchange
   24         Advisory Council; providing for purpose, membership,
   25         terms of office, and duties of the council; requiring
   26         the council to consult with certain experts regarding
   27         the use of health information in medical research to
   28         conform with provisions in the Health Insurance
   29         Portability and Accountability Act; requiring the
   30         Florida Center for Health Information and Policy
   31         Analysis to provide staff support; requiring reports
   32         to the Governor and Legislature; providing for future
   33         abolition of the council; providing duties of the
   34         agency with regard to the availability of specified
   35         information on the agency's Internet website;
   36         requiring the agency to develop and implement a plan
   37         to promote participation in regional and statewide
   38         health information exchanges; requiring the Office of
   39         Program Policy Analysis and Government Accountability
   40         to complete an independent evaluation of the grants
   41         program administered by the agency and submit the
   42         report to the Governor and Legislature; repealing s.
   43         408.062(5), F.S., relating to the removal of the
   44         agency's responsibility for developing an electronic
   45         health information network; amending s. 483.181, F.S.;
   46         expanding access to laboratory reports to facilitate
   47         the exchange of data between certain health care
   48         practitioners and providers; providing an effective
   49         date.
   50         
   51  Be It Enacted by the Legislature of the State of Florida:
   52         
   53         Section 1. Subsection (4) of section 395.3025, Florida
   54  Statutes, is amended to read:
   55         395.3025 Patient and personnel records; copies;
   56  examination.—
   57         (4) Patient records are confidential and must not be
   58  disclosed without the consent of the patient or his or her legal
   59  representative person to whom they pertain, but appropriate
   60  disclosure may be made without such consent to:
   61         (a) Licensed facility personnel, and attending physicians,
   62  or other health care practitioners and providers currently
   63  involved in the care or treatment of the patient for use only in
   64  connection with the treatment of the patient.
   65         (b) Licensed facility personnel only for administrative
   66  purposes or risk management and quality assurance functions.
   67         (c) The agency, for purposes of health care cost
   68  containment.
   69         (d) In any civil or criminal action, unless otherwise
   70  prohibited by law, upon the issuance of a subpoena from a court
   71  of competent jurisdiction and proper notice by the party seeking
   72  such records to the patient or his or her legal representative.
   73         (e) The department agency upon subpoena issued pursuant to
   74  s. 456.071, but the records obtained thereby must be used solely
   75  for the purpose of the department agency and the appropriate
   76  professional board in its investigation, prosecution, and appeal
   77  of disciplinary proceedings. If the department agency requests
   78  copies of the records, the facility shall charge no more than
   79  its actual copying costs, including reasonable staff time. The
   80  records must be sealed and must not be available to the public
   81  pursuant to s. 119.07(1) or any other statute providing access
   82  to records, nor may they be available to the public as part of
   83  the record of investigation for and prosecution in disciplinary
   84  proceedings made available to the public by the department
   85  agency or the appropriate regulatory board. However, the
   86  department agency must make available, upon written request by a
   87  practitioner against whom probable cause has been found, any
   88  such records that form the basis of the determination of
   89  probable cause.
   90         (f) The department of Health or its agent, for the purpose
   91  of establishing and maintaining a trauma registry and for the
   92  purpose of ensuring that hospitals and trauma centers are in
   93  compliance with the standards and rules established under ss.
   94  395.401, 395.4015, 395.4025, 395.404, 395.4045, and 395.405, and
   95  for the purpose of monitoring patient outcome at hospitals and
   96  trauma centers that provide trauma care services.
   97         (g) The Department of Children and Family Services or its
   98  agent, for the purpose of investigations of cases of abuse,
   99  neglect, or exploitation of children or vulnerable adults.
  100         (h) The State Long-Term Care Ombudsman Council and the
  101  local long-term care ombudsman councils, with respect to the
  102  records of a patient who has been admitted from a nursing home
  103  or long-term care facility, when the councils are conducting an
  104  investigation involving the patient as authorized under part II
  105  of chapter 400, upon presentation of identification as a council
  106  member by the person making the request. Disclosure under this
  107  paragraph shall only be made after a competent patient or the
  108  patient's representative has been advised that disclosure may be
  109  made and the patient has not objected.
  110         (i) A local trauma agency or a regional trauma agency that
  111  performs quality assurance activities, or a panel or committee
  112  assembled to assist a local trauma agency or a regional trauma
  113  agency in performing quality assurance activities. Patient
  114  records obtained under this paragraph are confidential and
  115  exempt from s. 119.07(1) and s. 24(a), Art. I of the State
  116  Constitution.
  117         (j) Organ procurement organizations, tissue banks, and eye
  118  banks required to conduct death records reviews pursuant to s.
  119  395.2050.
  120         (k) The Medicaid Fraud Control Unit in the Department of
  121  Legal Affairs pursuant to s. 409.920.
  122         (l) The Department of Financial Services, or an agent,
  123  employee, or independent contractor of the department who is
  124  auditing for unclaimed property pursuant to chapter 717.
  125         (m) A regional poison control center for purposes of
  126  treating a poison episode under evaluation, case management of
  127  poison cases, or compliance with data collection and reporting
  128  requirements of s. 395.1027 and the professional organization
  129  that certifies poison control centers in accordance with federal
  130  law.
  131         Section 2. Subsection (4) of section 408.05, Florida
  132  Statutes, is amended to read:
  133         408.05 Florida Center for Health Information and Policy
  134  Analysis.—
  135         (4) TECHNICAL ASSISTANCE.—
  136         (a) The center shall provide technical assistance to
  137  persons or organizations engaged in health planning activities
  138  in the effective use of statistics collected and compiled by the
  139  center. The center shall also provide the following additional
  140  technical assistance services:
  141         1. Establish procedures identifying the circumstances under
  142  which, the places at which, the persons from whom, and the
  143  methods by which a person may secure data from the center,
  144  including procedures governing requests, the ordering of
  145  requests, timeframes for handling requests, and other procedures
  146  necessary to facilitate the use of the center's data. To the
  147  extent possible, the center should provide current data timely
  148  in response to requests from public or private agencies.
  149         2. Provide assistance to data sources and users in the
  150  areas of database design, survey design, sampling procedures,
  151  statistical interpretation, and data access to promote improved
  152  health-care-related data sets.
  153         3. Identify health care data gaps and provide technical
  154  assistance to other public or private organizations for meeting
  155  documented health care data needs.
  156         4. Assist other organizations in developing statistical
  157  abstracts of their data sets that could be used by the center.
  158         5. Provide statistical support to state agencies with
  159  regard to the use of databases maintained by the center.
  160         6. To the extent possible, respond to multiple requests for
  161  information not currently collected by the center or available
  162  from other sources by initiating data collection.
  163         7. Maintain detailed information on data maintained by
  164  other local, state, federal, and private agencies in order to
  165  advise those who use the center of potential sources of data
  166  which are requested but which are not available from the center.
  167         8. Respond to requests for data which are not available in
  168  published form by initiating special computer runs on data sets
  169  available to the center.
  170         9. Monitor innovations in health information technology,
  171  informatics, and the exchange of health information and maintain
  172  a repository of technical resources to support the development
  173  of a statewide health information exchange network.
  174         (b) The agency shall administer, manage, and monitor grants
  175  to not-for-profit organizations, regional health information
  176  organizations, public health departments, or state agencies that
  177  submit proposals for planning, implementation, or training
  178  projects to advance the development of a health information
  179  network. Any grant contract shall be evaluated to ensure the
  180  effective outcome of the health information project.
  181         (b)(c) The agency shall initiate, oversee, manage, and
  182  evaluate the integration of health care data from each state
  183  agency that collects, stores, and reports on health care issues
  184  and make that data available to any health care practitioner
  185  through a statewide state health information exchange network.
  186         Section 3. Section 408.051, Florida Statutes, is created to
  187  read:
  188         408.051Florida eHealth Initiative Act.—
  189         (1) SHORT TITLE.—This section may be cited as the “Florida
  190  eHealth Initiative Act.”
  191         (2) LEGISLATIVE INTENT.—The Legislature recognizes that the
  192  exchange of electronic medical records will benefit consumers by
  193  increasing the quality and efficiency of health care throughout
  194  the state. It is the intent of the Legislature that the state
  195  promote and coordinate the establishment of a secure, privacy
  196  protected, and interconnected statewide health information
  197  exchange.
  198         (3) DEFINITIONS.—As used in this section, the term:
  199         (a) “Electronic medical record” means a record of a
  200  person's medical treatment which is created by a licensed health
  201  care provider and stored in an interoperable and accessible
  202  digital format.
  203         (b) “Electronic medical records system” means an
  204  application environment composed of at least two of the
  205  following systems: a clinical data repository; clinical decision
  206  support; controlled medical vocabulary; computerized provider
  207  order entry; pharmacy; or clinical documentation. The
  208  application must be used by health care practitioners to
  209  document, monitor, and manage health care delivery within a
  210  health care delivery system and must be capable of
  211  interoperability within a health information exchange.
  212         (c) “Health information exchange” means an electronic
  213  system used to acquire, process, and transmit electronic medical
  214  records that can be shared in real time among authorized health
  215  care providers, health care facilities, health insurers, and
  216  other recipients, as authorized by law, to facilitate the
  217  provision of health care services.
  218         (d) “Health information organization” means an entity that
  219  has a formal structure and established policies and procedures
  220  and that serves as a neutral convener of local stakeholders to
  221  enable the secure and reliable exchange of electronic medical
  222  records among authorized health care stakeholders within a
  223  defined geographic region to facilitate improvements in health
  224  care quality, safety, and coordination of care.
  225         (4) MATCHING GRANTS.—
  226         (a) Subject to a specific appropriation, the agency shall
  227  award and monitor matching grants to health information
  228  organizations that submit proposals that advance the development
  229  of a statewide health information exchange. Funds awarded under
  230  this subsection shall be awarded on the basis of matching each
  231  $1 of state funds with $1 of local or private funds. Local or
  232  private funds may be provided in the form of cash or in-kind
  233  support or services. Grants may be awarded within the following
  234  categories: development, operation, and collaboration.
  235         (b) The agency shall, by rule, establish specific
  236  eligibility criteria for a health information organization to
  237  qualify for a grant under this subsection. These criteria shall
  238  include, at a minimum, documentation of the following:
  239         1. For development grants, the proposed organizational
  240  structure, the level of community support, including a list of
  241  key participants, a demonstration of available local or private
  242  matching funds, a timeline for development of the health
  243  information exchange, and proposed goals and metrics.
  244         2. For operation grants, a demonstration of available local
  245  or private matching funds and a detailed business plan, which
  246  shall include a timeline for implementation of the health
  247  information exchange, policies and procedures to protect the
  248  privacy and security of electronic medical records, and proposed
  249  goals and metrics.
  250         3. For collaboration grants, a demonstration of available
  251  local or private matching funds, memoranda of understanding
  252  between at least two health information organizations for the
  253  exchange of electronic medical records, a demonstration of
  254  consistent use of the health information exchange by members
  255  within each participating health information organization, and a
  256  detailed business plan, which shall include a timeline for the
  257  implementation of the exchange of electronic medical records
  258  between participating health information organizations, policies
  259  and procedures to protect the privacy and security of electronic
  260  medical records, and proposed goals and metrics.
  261         (c) Beginning July 1, 2009, 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
  271  loan to eligible physicians licensed under chapter 458 or
  272  chapter 459 or to an eligible business entity whose shareholders
  273  are licensed under chapter 458 or chapter 459 for the initial
  274  costs of implementing an electronic medical records system.
  275         (b) In order to be eligible for a loan under this
  276  subsection, each physician must demonstrate that he or she has
  277  practiced continuously within the state for the previous 3
  278  years.
  279         (c) The agency may not provide a loan to a physician who
  280  has or to a business entity whose physician has:
  281         1. Been found guilty of violating s. 456.072(1) or been
  282  disciplined under the applicable licensing chapter in the
  283  previous 5 years.
  284         2. Been found guilty of or entered a plea of guilty or nolo
  285  contendere to a violation of s. 409.920 or s. 409.9201.
  286         3. Been sanctioned pursuant to s. 409.913 for fraud or
  287  abuse.
  288         (d) A loan may be provided to an eligible physician or
  289  business entity in a lump-sum amount to pay for the costs of
  290  purchasing hardware and software, subscription services,
  291  professional consultation, and staff training. The agency shall
  292  provide guidance to loan recipients by providing, at a minimum,
  293  a list of electronic medical records systems recognized or
  294  certified by national standards-setting entities as capable of
  295  being used to communicate with a health information exchange.
  296         (e) The agency shall distribute a minimum of 25 percent of
  297  funds appropriated to this program to physicians or business
  298  entities operating within a rural county as defined in s.
  299  288.106(1)(r).
  300         (f) The agency shall, by rule, develop standard terms and
  301  conditions for use in this program. At a minimum, these terms
  302  and conditions shall require:
  303         1. Loan repayment by the physician or business entity
  304  within a reasonable period, which may not be longer than 72
  305  months after the funding of the loan.
  306         2. Equal periodic payments that commence within 3 months
  307  after the funding of the loan.
  308         3. The eligible physician or business entity to execute a
  309  promissory note and a security agreement in favor of the state.
  310  The security agreement shall be a purchase-money security
  311  interest pledging as collateral for the loan the specific
  312  hardware and software purchased with the loan proceeds. The
  313  agency shall prepare and record a financing statement under
  314  chapter 679. The physician or business entity shall pay the cost
  315  of recording the financing statement. The security agreement
  316  shall further require that the physician or business entity pay
  317  all collection costs, including attorney's fees.
  318         (g) The agency shall further require the physician or
  319  business entity to provide additional security under one of the
  320  following subparagraphs:
  321         1. An irrevocable letter of credit, as defined in chapter
  322  675, in an amount equal to the amount of the loan.
  323         2. An escrow account consisting of cash or assets eligible
  324  for deposit in accordance with s. 625.52 in an amount equal to
  325  the amount of the loan. If the escrow agent is responsible for
  326  making the periodic payments on the loan, the required escrow
  327  balance may be diminished as payments are made.
  328         3. A pledge of the accounts receivables of the physician or
  329  business entity. This pledge shall be reflected on the financing
  330  statement.
  331         (h) All payments received from or on behalf of a physician
  332  or business entity under this program shall be deposited into
  333  the agency's Administrative Trust Fund to be used to fund new
  334  loans.
  335         (i) If a physician or business entity that has received a
  336  loan under this section ceases to provide care or services to
  337  patients, or if the physician or business entity defaults in any
  338  payment and the default continues for 30 days, the entire loan
  339  balance is immediately due and payable and bears interest from
  340  that point forward at the rate of 18 percent annually. Upon
  341  default, the agency may offset any moneys owed to the physician
  342  or business entity from the state and apply the offset against
  343  the outstanding balance.
  344         (j) If a physician defaults in any payment and if the
  345  default continues for 30 days, the default constitutes grounds
  346  for disciplinary action under chapter 458 or chapter 459 and s.
  347  456.072(1)(k).
  348         (6) FLORIDA HEALTH INFORMATION EXCHANGE ADVISORY COUNCIL.—
  349         (a) The Florida Health Information Exchange Advisory
  350  Council is created as an adjunct to the agency. The council is
  351  subject to the requirements of s. 20.052, except that only state
  352  officers and employees shall be reimbursed for per diem and
  353  travel expenses pursuant to s. 112.061.
  354         (b) The purpose of the council is to:
  355         1. Promote participation in regional and statewide health
  356  information exchanges and the adoption of health information
  357  technology to support the infrastructure capacity for regional
  358  and statewide health information exchanges.
  359         2. Conduct outreach and convene forums to educate
  360  stakeholders regarding the benefits of using a health
  361  information exchange.
  362         3. Provide guidance to stakeholders regarding the effective
  363  use of health information exchanges and standards for protecting
  364  the privacy and security of electronic medical records.
  365         (c) The council shall consist of the following members:
  366         1. The Secretary of Health Care Administration, or his or
  367  her designee.
  368         2. The State Surgeon General, or his or her designee.
  369         3. Two members appointed by and serving at the pleasure of
  370  the Governor, of which:
  371         a. One member must be from the health insurance industry.
  372         b. One member must be a consumer who is a resident of the
  373  state.
  374         4. Four members appointed by and serving at the pleasure of
  375  the President of the Senate, of which:
  376         a. One member must be from a hospital that uses an
  377  electronic medical records system.
  378         b. One member must be a physician who uses an electronic
  379  medical records system in his or her practice.
  380         c. One member must be a representative of an operating
  381  health information organization in the state.
  382         d. One member must be from a federally qualified health
  383  center or other rural health organization that uses an
  384  electronic medical records system.
  385         5. Four members appointed by and serving at the pleasure of
  386  the Speaker of the House of Representatives, of which:
  387         a. One member must be from a hospital that uses an
  388  electronic medical records system.
  389         b. One member must be a physician who uses an electronic
  390  medical records system in his or her practice.
  391         c. One member must be a representative of an operating
  392  health information organization in the state.
  393         d. One member must be from a federally qualified health
  394  center or other rural health organization that uses an
  395  electronic medical records system.
  396         (d) A member who is a representative of an operating health
  397  information organization in the state must recuse himself or
  398  herself during discussion, evaluation, or recommendation of a
  399  grant application.
  400         (e) Each member of the council subject to appointment shall
  401  be appointed to serve for a term of 4 years following the date
  402  of appointment. A vacancy shall be filled by appointment for the
  403  remainder of the term. Appointments shall be made within 45 days
  404  after the effective date of this section.
  405         (f) The council may meet at the call of the chair or at the
  406  request of a majority of its membership, but the council must
  407  meet at least quarterly. Meetings of the council may be held via
  408  teleconference or other electronic means.
  409         (g) Members shall elect a chair and vice chair annually.
  410         (h) A majority of the members constitutes a quorum and the
  411  affirmative vote of a majority of a quorum is necessary to take
  412  action.
  413         (i) The council's duties and responsibilities include, but
  414  are not limited to, developing recommendations to:
  415         1. Establish standards for all state-funded health
  416  information-exchange efforts. Such standards shall include, but
  417  are not limited to, policies and procedures to protect the
  418  privacy and security of electronic medical records.
  419         2. Remove barriers, including, but not limited to,
  420  technological, regulatory, and financial barriers, which limit
  421  participation by health care providers, health care facilities,
  422  and health insurers in a health information exchange.
  423         3. Remove barriers that prevent consumers from having
  424  access to their electronic medical records.
  425         4. Provide incentives to promote participation by health
  426  care providers, health care facilities, and health insurers in
  427  health information exchanges.
  428         5. Identify health care data held by state agencies and
  429  remove barriers to making that data available to authorized
  430  recipients through health information exchanges in a private and
  431  secure manner.
  432         6. Increase state agency participation in health
  433  information exchanges.
  434         7. Enter into partnerships with other state, regional, and
  435  federal entities in order to promote and coordinate health
  436  information-exchange efforts.
  437         8. Create a long-term plan for an interoperable statewide
  438  network of health information organizations.
  439  The council shall establish ad hoc issue-oriented technical
  440  workgroups on an as-needed basis to make recommendations to the
  441  council. The council shall consult with experts in the use of
  442  health information in medical research to ensure that all
  443  recommendations are consistent with the Health Insurance
  444  Portability and Accountability Act of 1996, Pub. L. No. 104-199,
  445  42 U.S.C. ss. 1301 et seq., and take into account the legitimate
  446  uses of health information for medical research, drug
  447  development, clinical trials, postapproval surveillance, and
  448  public health and public agency reporting requirements.
  449         (j) The Florida Center for Health Information and Policy
  450  Analysis within the agency shall provide, within existing
  451  resources, staff support to enable the council to carry out its
  452  responsibilities under this section.
  453         (k) Beginning July 1, 2010, the council shall annually
  454  provide a report to the Governor, the President of the Senate,
  455  the Speaker of the House of Representatives, and the chairs of
  456  the appropriate substantive committees of the Senate and the
  457  House of Representatives which includes, but is not limited to,
  458  the recommendations regarding the council's duties and
  459  responsibilities. In addition, by July 1, 2011, the council
  460  shall recommend a long-term plan to create an interoperable
  461  statewide network of health information organizations to the
  462  Governor, the President of the Senate, the Speaker of the House
  463  of Representatives, and the chairs of the appropriate
  464  substantive committees of the Senate and the House of
  465  Representatives.
  466         (l) This subsection is repealed and the council shall stand
  467  abolished July 1, 2013, unless reviewed and saved from repeal
  468  through reenactment by the Legislature.
  469         (7) AGENCY FOR HEALTH CARE ADMINISTRATION; DUTIES.—
  470         (a) The agency shall develop and maintain on its Internet
  471  website the following information:
  472         1. Federal and private-sector programs for funding health
  473  information exchanges, including analyses of successful local
  474  and state recipients of the programs, as well as unsuccessful
  475  local and state applicants of the programs.
  476         2. A clearinghouse of state and national legislative,
  477  regulatory, and public awareness activities related to health
  478  information exchanges.
  479         (b) The agency shall develop and implement a plan that
  480  promotes, at a minimum, participation in regional and statewide
  481  health information exchanges and the adoption of electronic
  482  medical records systems by physicians through the Electronic
  483  Medical Records System Adoption Loan Program, in consultation
  484  with the Florida Health Information Exchange Advisory Council,
  485  organizations representing allopathic and osteopathic practicing
  486  physicians, the Board of Medicine, and the Board of Osteopathic
  487  Medicine.
  488         (8) PROGRAM EVALUATION; REPORT.—The Office of Program
  489  Policy Analysis and Government Accountability shall complete an
  490  independent evaluation of the grants program administered by the
  491  agency. The evaluation must include, at a minimum, assessments
  492  of the grant evaluation and distribution process; the way in
  493  which grant dollars are spent; the level of participation by
  494  entities within each grantee's project; the extent of clinical
  495  data exchange among entities within each grantee's project; the
  496  sources of funding for each grantee; and the feasibility of each
  497  grantee achieving long-term sustainability without state grant
  498  funding. The evaluation must assess the level at which the
  499  current grants program is advancing the development of a
  500  statewide health information exchange and recommend other
  501  programs that may accomplish the same goal. The report shall be
  502  submitted to the Governor, the President of the Senate, the
  503  Speaker of the House of Representatives, and the chairs of the
  504  relevant committees in the Senate and the House of
  505  Representatives by July 1, 2010.
  506         Section 4. Subsection (5) of section 408.062, Florida
  507  Statutes, is repealed.
  508         Section 5. Subsection (2) of section 483.181, Florida
  509  Statutes, is amended to read:
  510         483.181 Acceptance, collection, identification, and
  511  examination of specimens.—
  512         (2) The results of a test must be reported directly to the
  513  licensed practitioner or other authorized person who requested
  514  it, and appropriate disclosure may be made by the clinical
  515  laboratory without a patient's consent to other health care
  516  practitioners and providers involved in the care or treatment of
  517  the patient for use in connection with the treatment of the
  518  patient. The report must include the name and address of the
  519  clinical laboratory in which the test was actually performed,
  520  unless the test was performed in a hospital laboratory and the
  521  report becomes an integral part of the hospital record.
  522         Section 6. This act shall take effect upon becoming a law.