Florida Senate - 2012                                     SB 594
       
       
       
       By Senator Storms
       
       
       
       
       10-00624-12                                            2012594__
    1                        A bill to be entitled                      
    2         An act relating to medical care; amending s. 395.3025,
    3         F.S.; providing powers of the Department of Health
    4         with regard to access to patient health records;
    5         amending s. 456.057, F.S.; providing for the
    6         department to obtain patient records without written
    7         authorization from the patient under certain
    8         circumstances; amending s. 456.074, F.S.; authorizing
    9         the department to issue an emergency order to suspend
   10         or restrict the license of a health care practitioner
   11         under certain circumstances; providing an effective
   12         date.
   13  
   14  Be It Enacted by the Legislature of the State of Florida:
   15  
   16         Section 1. Paragraph (e) of subsection (4) of section
   17  395.3025, Florida Statutes, is amended to read:
   18         395.3025 Patient and personnel records; copies;
   19  examination.—
   20         (4) Patient records are confidential and must not be
   21  disclosed without the consent of the patient or his or her legal
   22  representative, but appropriate disclosure may be made without
   23  such consent to:
   24         (e) The department agency upon subpoena issued pursuant to
   25  s. 456.071., but The records obtained thereby must be used
   26  solely for the purpose of the agency, the department, and the
   27  appropriate professional board in their its investigation,
   28  prosecution, and appeal of disciplinary proceedings. If the
   29  department agency requests copies of the records, the facility
   30  shall charge a fee pursuant to subsection (1) no more than its
   31  actual copying costs, including reasonable staff time. The
   32  records must be sealed and may must not be available to the
   33  public pursuant to s. 119.07(1) or any other statute providing
   34  access to records, nor may they be available to the public as
   35  part of the record of investigation for and prosecution in
   36  disciplinary proceedings made available to the public by the
   37  agency, the department, or the appropriate regulatory board.
   38  However, the department agency must make available, upon written
   39  request by a practitioner against whom probable cause has been
   40  found, any such records that form the basis of the determination
   41  of probable cause.
   42         Section 2. Paragraph (a) of subsection (9) of section
   43  456.057, Florida Statutes, is amended to read:
   44         456.057 Ownership and control of patient records; report or
   45  copies of records to be furnished.—
   46         (9)(a)1. The department may obtain patient records pursuant
   47  to a subpoena without written authorization from the patient if
   48  the department and the probable cause panel of the appropriate
   49  board, if any, find reasonable cause to believe that a health
   50  care practitioner has excessively or inappropriately prescribed
   51  any controlled substance specified in chapter 893 in violation
   52  of this chapter or any professional practice act or that a
   53  health care practitioner has practiced his or her profession
   54  below that level of care, skill, and treatment required as
   55  defined by this chapter or any professional practice act and
   56  also find that appropriate, reasonable attempts were made to
   57  obtain a patient release. Notwithstanding the foregoing, the
   58  department need not attempt to obtain a patient release when
   59  investigating an offense involving the inappropriate
   60  prescribing, overprescribing, or diversion of controlled
   61  substances and the offense involves a pain-management clinic.
   62  The department may obtain patient records without patient
   63  authorization or subpoena from any pain-management clinic
   64  required to be licensed if the department has probable cause to
   65  believe that a violation of any provision of s. 458.3265 or s.
   66  459.0137 is occurring or has occurred and reasonably believes
   67  that obtaining such authorization is not feasible due to the
   68  volume of the dispensing and prescribing activity involving
   69  controlled substances and that obtaining patient authorization
   70  or the issuance of a subpoena would jeopardize the
   71  investigation.
   72         2. The department may obtain patient records and insurance
   73  information pursuant to a subpoena without written authorization
   74  from the patient if the department and the probable cause panel
   75  of the appropriate board, if any, find reasonable cause to
   76  believe that a health care practitioner has provided inadequate
   77  medical care based on termination of insurance and also find
   78  that appropriate, reasonable attempts were made to obtain a
   79  patient release.
   80         3. The department may obtain patient records, billing
   81  records, insurance information, provider contracts, and all
   82  attachments thereto pursuant to a subpoena without written
   83  authorization from the patient if the department and probable
   84  cause panel of the appropriate board, if any, find reasonable
   85  cause to believe that a health care practitioner has submitted a
   86  claim, statement, or bill using a billing code that would result
   87  in payment greater in amount than would be paid using a billing
   88  code that accurately describes the services performed, requested
   89  payment for services that were not performed by that health care
   90  practitioner, used information derived from a written report of
   91  an automobile accident generated pursuant to chapter 316 to
   92  solicit or obtain patients personally or through an agent
   93  regardless of whether the information is derived directly from
   94  the report or a summary of that report or from another person,
   95  solicited patients fraudulently, received a kickback as defined
   96  in s. 456.054, violated the patient brokering provisions of s.
   97  817.505, or presented or caused to be presented a false or
   98  fraudulent insurance claim within the meaning of s.
   99  817.234(1)(a), and also find that, within the meaning of s.
  100  817.234(1)(a), patient authorization cannot be obtained because
  101  the patient cannot be located or is deceased, incapacitated, or
  102  suspected of being a participant in the fraud or scheme, and if
  103  the subpoena is issued for specific and relevant records.
  104         4. Notwithstanding subparagraphs 1.-3., when the department
  105  investigates a professional liability claim or undertakes action
  106  pursuant to s. 456.049 or s. 627.912, the department may obtain
  107  patient records pursuant to a subpoena without written
  108  authorization from the patient if the patient refuses to
  109  cooperate or if the department attempts to obtain a patient
  110  release and the failure to obtain the patient records would be
  111  detrimental to the investigation.
  112         5. If the department and the probable cause panel of the
  113  appropriate board, if any, find reasonable cause to believe that
  114  obtaining authorization from the patient would jeopardize the
  115  investigation, the department may obtain patient records
  116  pursuant to a subpoena without attempting to obtain written
  117  authorization from the patient.
  118         Section 3. Subsection (5) is added to section 456.074,
  119  Florida Statutes, to read:
  120         456.074 Certain health care practitioners; immediate
  121  suspension of license.—
  122         (5) The department may issue an emergency order suspending
  123  or restricting the license of any health care practitioner as
  124  defined in s. 456.001(4) who has committed, or is under
  125  investigation or prosecution for, any act that would constitute
  126  the basis for discipline under the applicable practice act or
  127  this chapter.
  128         Section 4. This act shall take effect July 1, 2012.