ENROLLED
       2009 Legislature             CS for CS for SB 162, 1st Engrossed
       
       
       
       
       
       
                                                              2009162er
    1  
    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         deleting the exemption that allows long-term ombudsman
    8         councils to have access to certain nursing home
    9         patient records; creating s. 408.051, F.S.; creating
   10         the “Florida Electronic Health Records Exchange Act”;
   11         providing definitions; authorizing the release of
   12         certain health records under emergency medical
   13         conditions without the consent of the patient or the
   14         patient representative; providing for immunity from
   15         civil liability; providing duties of the Agency for
   16         Health Care Administration with regard to the
   17         availability of specified information on the agency’s
   18         Internet website; requiring the agency to develop and
   19         implement a universal patient authorization form in
   20         paper and electronic formats for the release of
   21         certain health records; providing procedures for use
   22         of the form; providing penalties; providing for
   23         certain compensation and attorney’s fees and costs;
   24         creating s. 408.0512, F.S.; requiring the Agency for
   25         Health Care Administration to operate an electronic
   26         health record technology loan fund, subject to a
   27         specific appropriation; requiring the agency to adopt
   28         rules related to standard terms and conditions for the
   29         loan program; amending s. 409.916, F.S.; requiring
   30         that the agency deposit into the Grants and Donations
   31         Trust Fund private donations provided for the purpose
   32         of funding a certified electronic health record
   33         technology loan fund; amending s. 483.181, F.S.;
   34         expanding access to laboratory reports in order to
   35         facilitate the exchange of data between certain health
   36         care practitioners and providers; providing an
   37         effective date.
   38  
   39         WHEREAS, the use of electronic health information
   40  technology has been proven to benefit consumers by increasing
   41  the quality and efficiency of health care delivery throughout
   42  the state, and
   43         WHEREAS, clear and concise standards for sharing privacy
   44  protected medical information among authorized health care
   45  providers will enable providers to have cost-effective access to
   46  the medical information needed to make sound decisions about
   47  health care, and
   48         WHEREAS, maintaining the privacy and security of
   49  identifiable health records is essential to the adoption of
   50  procedures for sharing of electronic health records among health
   51  care providers involved in the treatment of patients, NOW,
   52  THEREFORE,
   53  
   54  Be It Enacted by the Legislature of the State of Florida:
   55  
   56         Section 1. Subsection (4) of section 395.3025, Florida
   57  Statutes, is amended to read:
   58         395.3025 Patient and personnel records; copies;
   59  examination.—
   60         (4) Patient records are confidential and must not be
   61  disclosed without the consent of the patient or his or her legal
   62  representative person to whom they pertain, but appropriate
   63  disclosure may be made without such consent to:
   64         (a) Licensed facility personnel, and attending physicians,
   65  or other health care practitioners and providers currently
   66  involved in the care or treatment of the patient for use only in
   67  connection with the treatment of the patient.
   68         (b) Licensed facility personnel only for administrative
   69  purposes or risk management and quality assurance functions.
   70         (c) The agency, for purposes of health care cost
   71  containment.
   72         (d) In any civil or criminal action, unless otherwise
   73  prohibited by law, upon the issuance of a subpoena from a court
   74  of competent jurisdiction and proper notice by the party seeking
   75  such records to the patient or his or her legal representative.
   76         (e) The agency upon subpoena issued pursuant to s. 456.071,
   77  but the records obtained thereby must be used solely for the
   78  purpose of the agency and the appropriate professional board in
   79  its investigation, prosecution, and appeal of disciplinary
   80  proceedings. If the agency requests copies of the records, the
   81  facility shall charge no more than its actual copying costs,
   82  including reasonable staff time. The records must be sealed and
   83  must not be available to the public pursuant to s. 119.07(1) or
   84  any other statute providing access to records, nor may they be
   85  available to the public as part of the record of investigation
   86  for and prosecution in disciplinary proceedings made available
   87  to the public by the agency or the appropriate regulatory board.
   88  However, the agency must make available, upon written request by
   89  a practitioner against whom probable cause has been found, any
   90  such records that form the basis of the determination of
   91  probable cause.
   92         (f) The Department of Health or its agent, for the purpose
   93  of establishing and maintaining a trauma registry and for the
   94  purpose of ensuring that hospitals and trauma centers are in
   95  compliance with the standards and rules established under ss.
   96  395.401, 395.4015, 395.4025, 395.404, 395.4045, and 395.405, and
   97  for the purpose of monitoring patient outcome at hospitals and
   98  trauma centers that provide trauma care services.
   99         (g) The Department of Children and Family Services or its
  100  agent, for the purpose of investigations of cases of abuse,
  101  neglect, or exploitation of children or vulnerable adults.
  102         (h)The State Long-Term Care Ombudsman Council and the
  103  local long-term care ombudsman councils, with respect to the
  104  records of a patient who has been admitted from a nursing home
  105  or long-term care facility, when the councils are conducting an
  106  investigation involving the patient as authorized under part II
  107  of chapter 400, upon presentation of identification as a council
  108  member by the person making the request. Disclosure under this
  109  paragraph shall only be made after a competent patient or the
  110  patient’s representative has been advised that disclosure may be
  111  made and the patient has not objected.
  112         (h)(i) A local trauma agency or a regional trauma agency
  113  that performs quality assurance activities, or a panel or
  114  committee assembled to assist a local trauma agency, or a
  115  regional trauma agency in performing quality assurance
  116  activities. Patient records obtained under this paragraph are
  117  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
  118  of the State Constitution.
  119         (i)(j) Organ procurement organizations, tissue banks, and
  120  eye banks required to conduct death records reviews pursuant to
  121  s. 395.2050.
  122         (j)(k) The Medicaid Fraud Control Unit in the Department of
  123  Legal Affairs pursuant to s. 409.920.
  124         (k)(l) The Department of Financial Services, or an agent,
  125  employee, or independent contractor of the department who is
  126  auditing for unclaimed property pursuant to chapter 717.
  127         (l)(m) A regional poison control center for purposes of
  128  treating a poison episode under evaluation, case management of
  129  poison cases, or compliance with data collection and reporting
  130  requirements of s. 395.1027 and the professional organization
  131  that certifies poison control centers in accordance with federal
  132  law.
  133         Section 2. Section 408.051, Florida Statutes, is created to
  134  read:
  135         408.051Florida Electronic Health Records Exchange Act.—
  136         (1)SHORT TITLE.—This section may be cited as the “Florida
  137  Electronic Health Records Exchange Act.”
  138         (2)DEFINITIONS.—As used in this section, the term:
  139         (a)“Electronic health record” means a record of a person’s
  140  medical treatment which is created by a licensed health care
  141  provider and stored in an interoperable and accessible digital
  142  format.
  143         (b)“Qualified electronic health record” means an
  144  electronic record of health-related information concerning an
  145  individual which includes patient demographic and clinical
  146  health information, such as medical history and problem lists,
  147  and which has the capacity to provide clinical decision support,
  148  to support physician order entry, to capture and query
  149  information relevant to health care quality, and to exchange
  150  electronic health information with, and integrate such
  151  information from, other sources.
  152         (c)“Certified electronic health record technology” means a
  153  qualified electronic health record that is certified pursuant to
  154  s. 3001(c)(5) of the Public Health Service Act as meeting
  155  standards adopted under s. 3004 of such act which are applicable
  156  to the type of record involved, such as an ambulatory electronic
  157  health record for office-based physicians or an inpatient
  158  hospital electronic health record for hospitals.
  159         (d)“Health record” means any information, recorded in any
  160  form or medium, which relates to the past, present, or future
  161  health of an individual for the primary purpose of providing
  162  health care and health-related services.
  163         (e)“Identifiable health record” means any health record
  164  that identifies the patient or with respect to which there is a
  165  reasonable basis to believe the information can be used to
  166  identify the patient.
  167         (f)“Patient” means an individual who has sought, is
  168  seeking, is undergoing, or has undergone care or treatment in a
  169  health care facility or by a health care provider.
  170         (g)“Patient representative” means a parent of a minor
  171  patient, a court-appointed guardian for the patient, a health
  172  care surrogate, or a person holding a power of attorney or
  173  notarized consent appropriately executed by the patient granting
  174  permission to a health care facility or health care provider to
  175  disclose the patient’s health care information to that person.
  176  In the case of a deceased patient, the term also means the
  177  personal representative of the estate of the deceased patient;
  178  the deceased patient’s surviving spouse, surviving parent, or
  179  surviving adult child; the parent or guardian of a surviving
  180  minor child of the deceased patient; the attorney for the
  181  patient’s surviving spouse, parent, or adult child; or the
  182  attorney for the parent or guardian of a surviving minor child.
  183         (3)EMERGENCY RELEASE OF IDENTIFIABLE HEALTH RECORD.—A
  184  health care provider may release or access an identifiable
  185  health record of a patient without the patient’s consent for use
  186  in the treatment of the patient for an emergency medical
  187  condition, as defined in s. 395.002(8), when the health care
  188  provider is unable to obtain the patient’s consent or the
  189  consent of the patient representative due to the patient’s
  190  condition or the nature of the situation requiring immediate
  191  medical attention. A health care provider who in good faith
  192  releases or accesses an identifiable health record of a patient
  193  in any form or medium under this subsection is immune from civil
  194  liability for accessing or releasing an identifiable health
  195  record.
  196         (4)UNIVERSAL PATIENT AUTHORIZATION FORM.—
  197         (a)By July 1, 2010, the agency shall develop forms in both
  198  paper and electronic formats which may be used by a health care
  199  provider to document patient authorization for the use or
  200  release, in any form or medium, of an identifiable health
  201  record.
  202         (b)The agency shall adopt by rule the authorization form
  203  and accompanying instructions and make the authorization form
  204  available on the agency’s website, pursuant to s. 408.05.
  205         (c)A health care provider receiving an authorization form
  206  containing a request for the release of an identifiable health
  207  record shall accept the form as a valid authorization to release
  208  an identifiable health record. A health care provider may elect
  209  to accept the authorization form in either electronic or paper
  210  format or both. The individual or entity that submits the
  211  authorization form containing a request for the release of an
  212  identifiable health record shall determine which format is
  213  accepted by the health care provider prior to submitting the
  214  form.
  215         (d)An individual or entity that submits a request for an
  216  identifiable health record is not required under this section to
  217  use the authorization form adopted and distributed by the
  218  agency.
  219         (e)The exchange by a health care provider of an
  220  identifiable health record upon receipt of an authorization form
  221  completed and submitted in accordance with agency instructions
  222  creates a rebuttable presumption that the release of the
  223  identifiable health record was appropriate. A health care
  224  provider that releases an identifiable health record in reliance
  225  on the information provided to the health care provider on a
  226  properly completed authorization form does not violate any right
  227  of confidentiality and is immune from civil liability for
  228  accessing or releasing an identifiable health record under this
  229  subsection.
  230         (f)A health care provider that exchanges an identifiable
  231  health record upon receipt of an authorization form shall not be
  232  deemed to have violated or waived any privilege protected under
  233  the statutory or common law of this state.
  234         (5)PENALTIES.—A person who does any of the following may
  235  be liable to the patient or a health care provider that has
  236  released an identifiable health record in reliance on an
  237  authorization form presented to the health care provider by the
  238  person for compensatory damages caused by an unauthorized
  239  release, plus reasonable attorney’s fees and costs:
  240         (a)Forges a signature on an authorization form or
  241  materially alters the authorization form of another person
  242  without the person’s authorization; or
  243         (b)Obtains an authorization form or an identifiable health
  244  record of another person under false pretenses.
  245         Section 3. Section 408.0512, Florida Statutes, is created
  246  to read:
  247         408.0512Electronic health records system adoption loan
  248  program.—
  249         (1)Subject to the availability of eligible donations from
  250  public or private entities and funding made available through s.
  251  3014 of the Public Health Service Act, the agency may operate a
  252  certified electronic health record technology loan fund subject
  253  to a specific appropriation as authorized by the General
  254  Appropriations Act or as provided through the provisions of s.
  255  216.181(11)(a) and (b).
  256         (2)The agency shall adopt rules related to standard terms
  257  and conditions for use in the loan program.
  258         Section 4. Subsection (1) of section 409.916, Florida
  259  Statutes, is amended to read:
  260         409.916 Grants and Donations Trust Fund.—
  261         (1) The agency shall deposit any funds received from
  262  pharmaceutical manufacturers and all other funds received by the
  263  agency from any other person as the result of a Medicaid cost
  264  containment strategy, in the nature of a rebate, grant, or other
  265  similar mechanism into the Grants and Donations Trust Fund. The
  266  agency shall deposit any funds received from private donations
  267  for the purpose of funding a certified electronic health record
  268  technology loan fund into the Grants and Donations Trust Fund.
  269         Section 5. Subsection (2) of section 483.181, Florida
  270  Statutes, is amended to read:
  271         483.181 Acceptance, collection, identification, and
  272  examination of specimens.—
  273         (2) The results of a test must be reported directly to the
  274  licensed practitioner or other authorized person who requested
  275  it, and appropriate disclosure may be made by the clinical
  276  laboratory without a patient’s consent to other health care
  277  practitioners and providers involved in the care or treatment of
  278  the patient as specified in s. 456.057(7)(a). The report must
  279  include the name and address of the clinical laboratory in which
  280  the test was actually performed, unless the test was performed
  281  in a hospital laboratory and the report becomes an integral part
  282  of the hospital record.
  283         Section 6. This act shall take effect upon becoming a law.