Florida Senate - 2009                       CS for CS for SB 162
       
       
       
       By the Committees on Governmental Oversight and Accountability;
       and Health Regulation; and Senator Ring
       
       
       
       585-03969-09                                           2009162c2
    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 health
   24         record technology loan fund, subject to a specific
   25         appropriation; requiring the agency to adopt rules
   26         related to standard terms and conditions for the loan
   27         program; amending s. 409.916, F.S.; requiring that the
   28         agency deposit into the Grants and Donations Trust
   29         Fund private donations provided for the purpose of
   30         funding a certified electronic health record
   31         technology loan fund; amending s. 483.181, F.S.;
   32         expanding access to laboratory reports in order to
   33         facilitate the exchange of data between certain health
   34         care practitioners and providers; providing an
   35         effective date.
   36  
   37         WHEREAS, the use of electronic health information
   38  technology has been proven to benefit consumers by increasing
   39  the quality and efficiency of health care delivery throughout
   40  the state, and
   41         WHEREAS, clear and concise standards for sharing privacy
   42  protected medical information among authorized health care
   43  providers will enable providers to have cost-effective access to
   44  the medical information needed to make sound decisions about
   45  health care, and
   46         WHEREAS, maintaining the privacy and security of
   47  identifiable health records is essential to the adoption of
   48  procedures for sharing of electronic health records among health
   49  care providers involved in the treatment of patients, NOW,
   50  THEREFORE,
   51  
   52  Be It Enacted by the Legislature of the State of Florida:
   53  
   54         Section 1. Subsection (4) of section 395.3025, Florida
   55  Statutes, is amended to read:
   56         395.3025 Patient and personnel records; copies;
   57  examination.—
   58         (4) Patient records are confidential and must not be
   59  disclosed without the consent of the patient or his or her legal
   60  representative person to whom they pertain, but appropriate
   61  disclosure may be made without such consent to:
   62         (a) Licensed facility personnel, and attending physicians,
   63  or other health care practitioners and providers currently
   64  involved in the care or treatment of the patient for use only in
   65  connection with the treatment of the patient.
   66         (b) Licensed facility personnel only for administrative
   67  purposes or risk management and quality assurance functions.
   68         (c) The agency, for purposes of health care cost
   69  containment.
   70         (d) In any civil or criminal action, unless otherwise
   71  prohibited by law, upon the issuance of a subpoena from a court
   72  of competent jurisdiction and proper notice by the party seeking
   73  such records to the patient or his or her legal representative.
   74         (e) The agency upon subpoena issued pursuant to s. 456.071,
   75  but the records obtained thereby must be used solely for the
   76  purpose of the agency and the appropriate professional board in
   77  its investigation, prosecution, and appeal of disciplinary
   78  proceedings. If the agency requests copies of the records, the
   79  facility shall charge no more than its actual copying costs,
   80  including reasonable staff time. The records must be sealed and
   81  must not be available to the public pursuant to s. 119.07(1) or
   82  any other statute providing access to records, nor may they be
   83  available to the public as part of the record of investigation
   84  for and prosecution in disciplinary proceedings made available
   85  to the public by the agency or the appropriate regulatory board.
   86  However, the agency must make available, upon written request by
   87  a 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. Section 408.051, Florida Statutes, is created to
  132  read:
  133         408.051Florida Electronic Health Records Exchange Act.—
  134         (1)SHORT TITLE.—This section may be cited as the “Florida
  135  Electronic Health Records Exchange Act.”
  136         (2)DEFINITIONS.—As used in this section, the term:
  137         (a)“Electronic health record” means a record of a person’s
  138  medical treatment which is created by a licensed health care
  139  provider and stored in an interoperable and accessible digital
  140  format.
  141         (b)“Qualified electronic health record” means an
  142  electronic record of health-related information concerning an
  143  individual which includes patient demographic and clinical
  144  health information, such as medical history and problem lists,
  145  and which has the capacity to provide clinical decision support,
  146  to support physician order entry, to capture and query
  147  information relevant to health care quality, and to exchange
  148  electronic health information with, and integrate such
  149  information from, other sources.
  150         (c)“Certified electronic health record technology” means a
  151  qualified electronic health record that is certified pursuant to
  152  s. 3001(c)(5) of the Public Health Service Act as meeting
  153  standards adopted under s. 3004 of such act which are applicable
  154  to the type of record involved, such as an ambulatory electronic
  155  health record for office-based physicians or an inpatient
  156  hospital electronic health record for hospitals.
  157         (d)“Health record” means any information, recorded in any
  158  form or medium, which relates to the past, present, or future
  159  health of an individual for the primary purpose of providing
  160  health care and health-related services.
  161         (e)“Identifiable health record” means any health record
  162  that identifies the patient or with respect to which there is a
  163  reasonable basis to believe the information can be used to
  164  identify the patient.
  165         (f)“Patient” means an individual who has sought, is
  166  seeking, is undergoing, or has undergone care or treatment in a
  167  health care facility or by a health care provider.
  168         (g)“Patient representative” means a parent of a minor
  169  patient, a court-appointed guardian for the patient, a health
  170  care surrogate, or a person holding a power of attorney or
  171  notarized consent appropriately executed by the patient granting
  172  permission to a health care facility or health care provider to
  173  disclose the patient’s health care information to that person.
  174  In the case of a deceased patient, the term also means the
  175  personal representative of the estate of the deceased patient;
  176  the deceased patient’s surviving spouse, surviving parent, or
  177  surviving adult child; the parent or guardian of a surviving
  178  minor child of the deceased patient; the attorney for the
  179  patient’s surviving spouse, parent, or adult child; or the
  180  attorney for the parent or guardian of a surviving minor child.
  181         (3)EMERGENCY RELEASE OF IDENTIFIABLE HEALTH RECORD.—A
  182  health care provider may release or access an identifiable
  183  health record of a patient without the patient’s consent for use
  184  in the treatment of the patient for an emergency medical
  185  condition, as defined in s. 395.002(8), when the health care
  186  provider is unable to obtain the patient’s consent or the
  187  consent of the patient representative due to the patient’s
  188  condition or the nature of the situation requiring immediate
  189  medical attention. A health care provider who in good faith
  190  releases or accesses an identifiable health record of a patient
  191  in any form or medium under this section is immune from civil
  192  liability for accessing or releasing an identifiable health
  193  record.
  194         (4)UNIVERSAL PATIENT AUTHORIZATION FORM.—
  195         (a)By July 1, 2010, the agency shall develop forms in both
  196  paper and electronic formats which may be used by a health care
  197  provider to document patient authorization for the use or
  198  release, in any form or medium, of an identifiable health
  199  record.
  200         (b)The agency shall adopt by rule the authorization form
  201  and accompanying instructions and make the authorization form
  202  available on the agency’s website, pursuant to s. 408.05.
  203         (c)A health care provider receiving an authorization form
  204  containing a request for the release of an identifiable health
  205  record shall accept the form as a valid authorization to release
  206  an identifiable health record. A health care provider may elect
  207  to accept the authorization form in either electronic or paper
  208  format or both. The individual or entity that submits the
  209  authorization form containing a request for the release of an
  210  identifiable health record shall determine which format is
  211  accepted by the health care provider prior to submitting the
  212  form.
  213         (d)An individual or entity that submits a request for an
  214  identifiable health record is not required under this section to
  215  use the authorization form adopted and distributed by the
  216  agency.
  217         (e)The exchange by a health care provider of an
  218  identifiable health record upon receipt of an authorization form
  219  completed and submitted in accordance with agency instructions
  220  creates a rebuttable presumption that the release of the
  221  identifiable health record was appropriate. A health care
  222  provider that releases an identifiable health record in reliance
  223  on the information provided to the health care provider on a
  224  properly completed authorization form does not violate any right
  225  of confidentiality and is immune from liability under this
  226  section.
  227         (f)A health care provider that exchanges an identifiable
  228  health record upon receipt of an authorization form shall not be
  229  deemed to have violated or waived any privilege protected under
  230  the statutory or common law of this state.
  231         (5)PENALTIES.—A person who does any of the following may
  232  be liable to the patient or a health care provider that has
  233  released an identifiable health record in reliance on an
  234  authorization form presented to the health care provider by the
  235  person for compensatory damages caused by an unauthorized
  236  release, plus reasonable attorney’s fees and costs:
  237         (a)Forges a signature on an authorization form or
  238  materially alters the authorization form of another person
  239  without the person’s authorization; or
  240         (b)Obtains an authorization form or an identifiable health
  241  record of another person under false pretenses.
  242         Section 3. Section 408.0512, Florida Statutes, is created
  243  to read:
  244         408.0512Electronic health records system adoption loan
  245  program.—
  246         (1)Subject to the availability of eligible donations from
  247  public or private entities and funding made available through s.
  248  3014 of the Public Health Service Act, the agency may operate a
  249  certified electronic health record technology loan fund subject
  250  to a specific appropriation as authorized by the General
  251  Appropriations Act or as provided through the provisions of s.
  252  216.181(11)(a) and (b).
  253         (2)The agency shall adopt rules related to standard terms
  254  and conditions for use in the loan program.
  255         Section 4. Subsection (1) of section 409.916, Florida
  256  Statutes, is amended to read:
  257         409.916 Grants and Donations Trust Fund.—
  258         (1) The agency shall deposit any funds received from
  259  pharmaceutical manufacturers and all other funds received by the
  260  agency from any other person as the result of a Medicaid cost
  261  containment strategy, in the nature of a rebate, grant, or other
  262  similar mechanism into the Grants and Donations Trust Fund. The
  263  agency shall deposit any funds received from private donations
  264  for the purpose of funding a certified electronic health record
  265  technology loan fund into the Grants and Donations Trust Fund.
  266         Section 5. Subsection (2) of section 483.181, Florida
  267  Statutes, is amended to read:
  268         483.181 Acceptance, collection, identification, and
  269  examination of specimens.—
  270         (2) The results of a test must be reported directly to the
  271  licensed practitioner or other authorized person who requested
  272  it, and appropriate disclosure may be made by the clinical
  273  laboratory without a patient’s consent to other health care
  274  practitioners and providers involved in the care or treatment of
  275  the patient as specified in s. 456.057(7)(a). The report must
  276  include the name and address of the clinical laboratory in which
  277  the test was actually performed, unless the test was performed
  278  in a hospital laboratory and the report becomes an integral part
  279  of the hospital record.
  280         Section 6. This act shall take effect upon becoming a law.