Florida Senate - 2009 CS for SB 162
By the Committee on Health Regulation; and Senator Ring
588-02677-09 2009162c1
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 health records in order to facilitate the exchange of
5 data between certain health care facility personnel,
6 practitioners, and providers and attending physicians;
7 creating s. 408.051, F.S.; creating the “Florida
8 Electronic Health Records Exchange Act”; providing
9 definitions; authorizing the release of certain health
10 records under emergency medical conditions without the
11 consent of the patient or the patient representative;
12 providing for immunity from civil liability; providing
13 duties of the Agency for Health Care Administration
14 with regard to the availability of specified
15 information on the agency’s Internet website;
16 requiring the agency to develop and implement a
17 universal patient authorization form in paper and
18 electronic formats for the release of certain health
19 records; providing procedures for use of the form;
20 providing penalties; providing for certain
21 compensation and attorney’s fees and costs; creating
22 s. 408.0512, F.S.; requiring the Agency for Health
23 Care Administration to operate an electronic medical
24 records system adoption loan program, subject to
25 specific appropriation; specifying the uses of the
26 loan; requiring the agency to adopt rules related to
27 standard terms and conditions for the loan program;
28 amending s. 483.181, F.S.; expanding access to
29 laboratory reports in order to facilitate the exchange
30 of data between certain health care practitioners and
31 providers; providing an effective date.
32
33 WHEREAS, the use of electronic health information
34 technology has been proven to benefit consumers by increasing
35 the quality and efficiency of health care delivery throughout
36 the state, and
37 WHEREAS, clear and concise standards for sharing privacy
38 protected medical information among authorized health care
39 providers will enable providers to have cost-effective access to
40 the medical information needed to make sound decisions about
41 health care, and
42 WHEREAS, maintaining the privacy and security of
43 identifiable health records is essential to the adoption of
44 procedures for sharing of electronic health records among health
45 care providers involved in the treatment of patients, NOW,
46 THEREFORE,
47
48 Be It Enacted by the Legislature of the State of Florida:
49
50 Section 1. Subsection (4) of section 395.3025, Florida
51 Statutes, is amended to read:
52 395.3025 Patient and personnel records; copies;
53 examination.—
54 (4) Patient records are confidential and must not be
55 disclosed without the consent of the patient or his or her legal
56 representative person to whom they pertain, but appropriate
57 disclosure may be made without such consent to:
58 (a) Licensed facility personnel, and attending physicians,
59 or other health care practitioners and providers currently
60 involved in the care or treatment of the patient for use only in
61 connection with the treatment of the patient.
62 (b) Licensed facility personnel only for administrative
63 purposes or risk management and quality assurance functions.
64 (c) The agency, for purposes of health care cost
65 containment.
66 (d) In any civil or criminal action, unless otherwise
67 prohibited by law, upon the issuance of a subpoena from a court
68 of competent jurisdiction and proper notice by the party seeking
69 such records to the patient or his or her legal representative.
70 (e) The agency upon subpoena issued pursuant to s. 456.071,
71 but the records obtained thereby must be used solely for the
72 purpose of the agency and the appropriate professional board in
73 its investigation, prosecution, and appeal of disciplinary
74 proceedings. If the agency requests copies of the records, the
75 facility shall charge no more than its actual copying costs,
76 including reasonable staff time. The records must be sealed and
77 must not be available to the public pursuant to s. 119.07(1) or
78 any other statute providing access to records, nor may they be
79 available to the public as part of the record of investigation
80 for and prosecution in disciplinary proceedings made available
81 to the public by the agency or the appropriate regulatory board.
82 However, the agency must make available, upon written request by
83 a practitioner against whom probable cause has been found, any
84 such records that form the basis of the determination of
85 probable cause.
86 (f) The Department of Health or its agent, for the purpose
87 of establishing and maintaining a trauma registry and for the
88 purpose of ensuring that hospitals and trauma centers are in
89 compliance with the standards and rules established under ss.
90 395.401, 395.4015, 395.4025, 395.404, 395.4045, and 395.405, and
91 for the purpose of monitoring patient outcome at hospitals and
92 trauma centers that provide trauma care services.
93 (g) The Department of Children and Family Services or its
94 agent, for the purpose of investigations of cases of abuse,
95 neglect, or exploitation of children or vulnerable adults.
96 (h) The State Long-Term Care Ombudsman Council and the
97 local long-term care ombudsman councils, with respect to the
98 records of a patient who has been admitted from a nursing home
99 or long-term care facility, when the councils are conducting an
100 investigation involving the patient as authorized under part II
101 of chapter 400, upon presentation of identification as a council
102 member by the person making the request. Disclosure under this
103 paragraph shall only be made after a competent patient or the
104 patient’s representative has been advised that disclosure may be
105 made and the patient has not objected.
106 (i) A local trauma agency or a regional trauma agency that
107 performs quality assurance activities, or a panel or committee
108 assembled to assist a local trauma agency or a regional trauma
109 agency in performing quality assurance activities. Patient
110 records obtained under this paragraph are confidential and
111 exempt from s. 119.07(1) and s. 24(a), Art. I of the State
112 Constitution.
113 (j) Organ procurement organizations, tissue banks, and eye
114 banks required to conduct death records reviews pursuant to s.
115 395.2050.
116 (k) The Medicaid Fraud Control Unit in the Department of
117 Legal Affairs pursuant to s. 409.920.
118 (l) The Department of Financial Services, or an agent,
119 employee, or independent contractor of the department who is
120 auditing for unclaimed property pursuant to chapter 717.
121 (m) A regional poison control center for purposes of
122 treating a poison episode under evaluation, case management of
123 poison cases, or compliance with data collection and reporting
124 requirements of s. 395.1027 and the professional organization
125 that certifies poison control centers in accordance with federal
126 law.
127 Section 2. Section 408.051, Florida Statutes, is created to
128 read:
129 408.051 Florida Electronic Health Records Exchange Act.—
130 (1) SHORT TITLE.—This section may be cited as the “Florida
131 Electronic Health Records Exchange Act.”
132 (2) DEFINITIONS.—As used in this section, the term:
133 (a) “Electronic health record” means a record of a person’s
134 medical treatment which is created by a licensed health care
135 provider and stored in an interoperable and accessible digital
136 format.
137 (b) “Electronic health records system” means an application
138 environment consisting of at least two of the following
139 components: a clinical data repository, clinical decision
140 support, a controlled medical vocabulary, a computerized
141 provider order entry, a pharmacy, or clinical documentation. The
142 application must be used by health care practitioners to
143 document, monitor, and manage health care delivery within a
144 health care delivery system and must be capable of
145 interoperability within a health information exchange.
146 (c) “Health information exchange” means an electronic
147 health records system used to acquire, process, and transmit
148 electronic health records that can be shared in real time among
149 authorized health care providers, health care facilities, health
150 insurers, and other recipients, as authorized by law, to
151 facilitate the provision of health care services.
152 (d) “Health record” means any information, recorded in any
153 form or medium, which relates to the past, present, or future
154 health of an individual for the primary purpose of providing
155 health care and health-related services.
156 (e) “Identifiable health record” means any health record
157 that identifies the patient or with respect to which there is a
158 reasonable basis to believe the information can be used to
159 identify the patient.
160 (f) “Patient” means an individual who has sought, is
161 seeking, is undergoing, or has undergone care or treatment in a
162 health care facility or by a health care provider.
163 (g) “Patient representative” means a parent of a minor
164 patient, a court-appointed guardian for the patient, a health
165 care surrogate, or a person holding a power of attorney or
166 notarized consent appropriately executed by the patient granting
167 permission to a health care facility or health care provider to
168 disclose the patient’s health care information to that person.
169 In the case of a deceased patient, the term also means the
170 personal representative of the estate of the deceased patient;
171 the deceased patient’s surviving spouse, surviving parent, or
172 surviving adult child; the parent or guardian of a surviving
173 minor child of the deceased patient; or the attorney for the
174 deceased patient.
175 (3) EMERGENCY RELEASE OF IDENTIFIABLE HEALTH RECORD.—A
176 health care provider may release or access an identifiable
177 health record of a patient without the patient’s consent for use
178 in the treatment of the patient for an emergency medical
179 condition, as defined in s. 395.002(8), when the health care
180 provider is unable to obtain the patient’s consent or the
181 consent of the patient representative due to the patient’s
182 condition or the nature of the situation requiring immediate
183 medical attention. A health care provider who in good faith
184 releases or accesses an identifiable health record of a patient
185 in any form or medium under this section is immune from civil
186 liability for accessing or releasing an identifiable health
187 record.
188 (4) UNIVERSAL PATIENT AUTHORIZATION FORM.—
189 (a) By July 1, 2010, the agency shall develop forms in both
190 paper and electronic formats which may be used by a health care
191 provider to document patient authorization for the use or
192 release, in any form or medium, of an identifiable health
193 record.
194 (b) The agency shall adopt by rule the authorization form
195 and accompanying instructions and make the authorization form
196 available on the agency’s website, pursuant to s. 408.05.
197 (c) A health care provider receiving an authorization form
198 containing a request for the release of an identifiable health
199 record shall accept the form as a valid authorization to release
200 an identifiable health record. A health care provider may elect
201 to accept the authorization form in either electronic or paper
202 format or both. The individual or entity that submits the
203 authorization form containing a request for the release of an
204 identifiable health record shall determine which format is
205 accepted by the health care provider prior to submitting the
206 form.
207 (d) An individual or entity that submits a request for an
208 identifiable health record is not required under this section to
209 use the authorization form adopted and distributed by the
210 agency.
211 (e) The exchange by a health care provider of an
212 identifiable health record upon receipt of an authorization form
213 completed and submitted in accordance with agency instructions
214 creates a rebuttable presumption that the release of the
215 identifiable health record was appropriate. A health care
216 provider that releases an identifiable health record in reliance
217 on the information provided to the health care provider on a
218 properly completed authorization form does not violate any right
219 of confidentiality and is immune from liability under this
220 section.
221 (f) A health care provider that exchanges an identifiable
222 health record upon receipt of an authorization form shall not be
223 deemed to have violated or waived any privilege protected under
224 the statutory or common law of this state.
225 (5) PENALTIES.—A person who does any of the following may
226 be liable to the patient or a health care provider that has
227 released an identifiable health record in reliance on an
228 authorization form presented to the health care provider by the
229 person for compensatory damages caused by an unauthorized
230 release, plus reasonable attorney’s fees and costs:
231 (a) Forges a signature on an authorization form or
232 materially alters the authorization form of another person
233 without the person’s authorization; or
234 (b) Obtains an authorization form or an identifiable health
235 record of another person under false pretenses.
236 Section 3. Section 408.0512, Florida Statutes, is created
237 to read:
238 408.0512 Electronic health records system adoption loan
239 program.—
240 (1) Subject to a specific appropriation and the
241 availability of funding made available through s. 3014 of the
242 Public Health Services Act, the agency shall operate an
243 electronic health records system adoption loan program to:
244 (a) Facilitate the purchase of certified electronic health
245 record technology;
246 (b) Enhance the use of certified electronic health record
247 technology, which may include costs associated with upgrading
248 health information technology so that it meets criteria
249 necessary for certified electronic health record technology;
250 (c) Train personnel in the use of such technology; or
251 (d) Improve the secure electronic exchange of health
252 information.
253 (2) The agency shall adopt rules related to standard terms
254 and conditions for use in the loan program.
255 Section 4. Subsection (2) of section 483.181, Florida
256 Statutes, is amended to read:
257 483.181 Acceptance, collection, identification, and
258 examination of specimens.—
259 (2) The results of a test must be reported directly to the
260 licensed practitioner or other authorized person who requested
261 it, and appropriate disclosure may be made by the clinical
262 laboratory without a patient’s consent to other health care
263 practitioners and providers involved in the care or treatment of
264 the patient as specified in s. 456.057(7)(a). The report must
265 include the name and address of the clinical laboratory in which
266 the test was actually performed, unless the test was performed
267 in a hospital laboratory and the report becomes an integral part
268 of the hospital record.
269 Section 5. This act shall take effect upon becoming a law.