Senate Bill 0260c1

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    Florida Senate - 1998                            CS for SB 260

    By the Committee on Health Care





    317-1702-98

  1                      A bill to be entitled

  2         An act relating to confidentiality of records;

  3         providing definitions; providing for the

  4         confidentiality of health, health insurance,

  5         medical, and patient records and for data or

  6         information pertaining to individuals contained

  7         in such records; providing exceptions; amending

  8         s. 455.677, F.S., relating to disposition of

  9         certain medical records held by practitioners;

10         requiring rules to provide for specific methods

11         of disposal following expiration of the

12         mandatory retention period; providing for

13         alternatives for electronic records; providing

14         an effective date.

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16  Be It Enacted by the Legislature of the State of Florida:

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18         Section 1.  (1)  As used in this section, the term:

19         (a)  "Confidential" means private and not for

20  communication to others, except as provided by law.

21         (b)  "Health record" means data or information,

22  regardless of the physical form, characteristics, or means of

23  transmission, concerning the condition of the mind or body of

24  an individual who participates in a professional relationship

25  as a patient, client, or customer of a health care

26  practitioner or health care provider for the receipt of

27  curative, rehabilitative, therapeutic, cosmetic, or palliative

28  treatment which data or information is obtained by such a

29  practitioner or provider as a result of a professional

30  relationship, professional association, or commercial exchange

31  with the individual, and which data or information is

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    Florida Senate - 1998                            CS for SB 260
    317-1702-98




  1  converted to a medium that results in a record that is

  2  maintained as required by law or accepted professional or

  3  industry standards and practices.

  4         (c)  "Health insurance record" means data or

  5  information, regardless of the physical form, characteristics,

  6  or means of transmission, concerning services, care, or

  7  treatment provided to an individual through a professional

  8  relationship, professional association, or commercial exchange

  9  with a health care practitioner or health care provider

10  relating to health or medical services covered, provided,

11  excluded, or paid on behalf of the individual who is insured

12  by an insurance company or an individual who is a subscriber

13  or an enrollee of a managed care organization which data or

14  information is converted to a medium that results in a record

15  that is maintained as required by law or accepted professional

16  or industry standards and practices.

17         (d)  "Medical record" means data or information,

18  regardless of the physical form, characteristics, or means of

19  transmission, concerning the condition of the mind or body of

20  an individual who is a patient, client, or customer of a

21  health care practitioner or health care provider that is

22  obtained by such practitioner or provider as a result of a

23  professional relationship, professional association, or

24  commercial exchange with the individual and which data or

25  information is converted to a medium that results in a record

26  that is maintained as required by law or accepted professional

27  or industry standards and practices.

28         (e)  "Patient record" means data or information,

29  regardless of the physical form, characteristics, or means of

30  transmission, concerning the condition of the mind or body of

31  an individual who participates in a professional relationship

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    Florida Senate - 1998                            CS for SB 260
    317-1702-98




  1  as a patient, client, or customer of a health care

  2  practitioner or health care provider for the receipt of

  3  curative, rehabilitative, therapeutic, cosmetic, or palliative

  4  treatment which data or information is obtained by such a

  5  practitioner or provider as a result of the professional

  6  relationship, professional association, or commercial exchange

  7  with the individual and which data or information is converted

  8  to a medium that results in a record that is maintained as

  9  required by law or accepted professional or industry standards

10  and practices.

11         (f)  "Record" means all documents, papers, letters,

12  maps, books, tapes, photographs, films, sound recordings, data

13  processing software, or other material, regardless of the

14  physical form, characteristics, or mode of transmission, made

15  or received through a private or public professional

16  relationship, association, or commercial exchange.

17         (g)  "Research record" means data or information,

18  regardless of the physical form, characteristics, or means of

19  transmission, concerning an individual which is converted to a

20  medium that preserves the data or information concerning the

21  individual. Such data or information may be:

22         1.  Provided to a health researcher by or on behalf of

23  the individual when he or she is a research participant, or in

24  connection with research approved by an Institutional Review

25  Board established in accordance with federal law;

26         2.  Reported by a health care practitioner or health

27  care provider to the manufacturer of a drug, biologic, or

28  medical device product in connection with post-marketing

29  surveillance of the safety and efficacy of such manufacturer's

30  drug, biologic, or medical device product, including its use

31  in special populations; or

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    Florida Senate - 1998                            CS for SB 260
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  1         3.  Provided voluntarily to a medical or pharmacology

  2  researcher as anonymous data or information, in which case

  3  personal identifiers have been removed, encrypted, or replaced

  4  with a code such that the identity of the individual is not

  5  apparent from the facts contained in the data or information,

  6  but which may, in the case of encrypted or coded information,

  7  permit the identity of the individual to be determined by a

  8  person who uses the encryption key or coding system.

  9         (2)(a)  Except as otherwise provided by law and

10  paragraph (c), health, health insurance, medical, and patient

11  records are confidential and protected as provided under

12  Section 23, Article I of the State Constitution. Access to

13  such records must be granted upon the written consent of the

14  individual to whom the record pertains or the person's legal

15  representative; the written consent of the person who has

16  provided information contained in the record, for that portion

17  of the record provided, or that person's legal representative;

18  pursuant to subpoena, upon demonstration of compelling

19  relevance; or pursuant to order of a court of competent

20  jurisdiction.

21         (b)  Except as otherwise provided by law and paragraph

22  (c), any data or information concerning an individual in a

23  health, health insurance, medical, or patient record

24  concerning medical, psychiatric, or surgical care,

25  consultation, counseling, evaluation, testing, or treatment

26  provided to the individual is confidential. Such information

27  may be disclosed to a third party only after written consent

28  has been given by the individual to whom the data or

29  information pertains or the legal representative of the

30  person, a subpoena has been issued upon demonstration of

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    Florida Senate - 1998                            CS for SB 260
    317-1702-98




  1  compelling relevance, or pursuant to order of a court of

  2  competent jurisdiction.

  3         (c)  An insurer or managed care organization may use or

  4  disclose records, information, or data made confidential under

  5  this subsection to its employees; persons acting on behalf of

  6  or at the direction of the insurer or managed care

  7  organization for legitimate business purposes; federal or

  8  state governmental authorities for financial audits,

  9  performance audits, quality-assurance review, utilization

10  review, or investigation or prosecution of fraud, or a

11  violation of laws related to the provision of health care or

12  payment for health care. However, such use or disclosure shall

13  be as narrowly authorized as is necessary to accomplish the

14  legitimate business function for which use or disclosure is

15  determined to be necessary. Legitimate business functions for

16  which records, information, or data made confidential under

17  this subsection may be used or disclosed include: fraud

18  investigation, risk management, quality assurance, utilization

19  review, peer review, patient care, surveys for purposes of

20  accreditation, and processing insurance or managed care

21  organization benefits, claims, and disputes or grievances.

22         (3)  Data or information that is obtained, compiled,

23  and maintained as a research record, as provided under this

24  section, shall always retain its confidential and privileged

25  status and may be used only for medical and pharmacological

26  research. Such data or information is not discoverable or

27  admissible in any court or administrative proceeding without

28  the written consent of the individual to whom the record

29  pertains or the individual's legal representative; a subpoena,

30  upon demonstration of compelling relevance; or an order of a

31  court of competent jurisdiction.

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    Florida Senate - 1998                            CS for SB 260
    317-1702-98




  1

  2  This section does not prohibit the disclosure of data or

  3  information that is being obtained, compiled, and maintained

  4  as a research record, provided that the identity of any

  5  individual who participates as a research subject and about

  6  whom anonymous data or information is provided or product

  7  safety or efficacy data or information is reported as part of

  8  post-marketing surveillance is not disclosed in any release of

  9  research results or publication of research findings. A

10  researcher that requests data or information protected under

11  this section must pay the actual costs incurred to provide the

12  data or information including, but not limited to, copying

13  charges, postage, and employee time relating to removal of

14  personal identifiers and other activities pertaining to data,

15  information, or record maintenance.

16         Section 2.  Section 455.677, Florida Statutes, is

17  amended to read:

18         455.677  Disposition of records of deceased

19  practitioners or practitioners relocating or terminating

20  practice.--Each board created under the provisions of chapter

21  457, chapter 458, chapter 459, chapter 460, chapter 461,

22  chapter 463, chapter 464, chapter 465, chapter 466, part I of

23  chapter 484, chapter 486, chapter 490, or chapter 491, and the

24  department under the provisions of chapter 462, shall provide

25  by rule for the disposition, under that chapter, of the

26  medical records or records of a psychological nature of

27  practitioners which are in existence at the time the

28  practitioner dies, terminates practice, or relocates and is no

29  longer available to patients and which records pertain to the

30  practitioner's patients.  The rules shall provide that the

31  records be retained for at least 2 years after the

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    Florida Senate - 1998                            CS for SB 260
    317-1702-98




  1  practitioner's death, termination of practice, or relocation.

  2  In the case of the death of the practitioner, the rules shall

  3  provide for the disposition of such records by the estate of

  4  the practitioner. The rules must provide that such records may

  5  be disposed of after the mandatory retention period only by

  6  delivery to the patient or by shredding or burning in

  7  accordance with standards adopted by the department. However,

  8  the rules may provide for appropriate alternatives for

  9  electronic records, including perpetual archival.

10         Section 3.  This act shall take effect upon becoming a

11  law.

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13          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
14                              SB 260

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16  Definitions for the terms "confidential," "record," and
    "research record" have been added to the definition section;
17  specific circumstances are listed to which the concept of
    "legitimate business function," as used in the bill, apply;
18  and the definition of terms already in the bill have been
    revised. The reference to persons whose interests are
19  protected by the bill is changed from "natural person" to
    "individual." Insurers and managed care organizations, as well
20  as research records, are expressly excluded from restrictions
    on confidential information provided in the bill, subject to
21  certain specified guidelines. Researchers are required to pay
    certain costs resulting from compliance with requests for
22  confidential data and information. The Department of Health is
    authorized to adopt rules relating to the disposal of patient
23  records that provide for appropriate alternatives for
    electronic records, including perpetual archival.
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