House Bill 2101e2

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                                         HB 2101, Second Engrossed



  1                      A bill to be entitled

  2         An act relating to public records; amending s.

  3         119.07, F.S.; providing an exemption from

  4         public records requirements for certain

  5         information on health care practitioners

  6         working in correctional or mental health

  7         facilities; amending s. 455.5656, F.S.;

  8         providing exemption from public records

  9         requirements for information obtained for

10         practitioner profiles of health care

11         practitioners not previously profiled; amending

12         s. 943.0585, F.S.; providing exemption from

13         public records requirements for expunged

14         criminal history information on health care

15         practitioners obtained for certain employment,

16         licensure, or contracting purposes; providing a

17         penalty; providing an exemption from public

18         records requirements for certain information on

19         certain court records to enforce certain orders

20         by the Department of Health; providing for

21         future review and repeal; amending s. 943.059,

22         F.S.; providing sealed criminal history records

23         to the department under certain circumstances;

24         providing findings of public necessity;

25         providing a contingent effective date.

26

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

28

29         Section 1.  Paragraph (dd) is added to subsection (3)

30  of section 119.07, Florida Statutes, to read:

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                                         HB 2101, Second Engrossed



  1         119.07  Inspection, examination, and duplication of

  2  records; exemptions.--

  3         (3)

  4         (dd)  The home addresses and home telephone numbers of

  5  health care practitioners, as defined in s. 455.501(4),

  6  working in or with any type of correctional facility,

  7  including any prison or jail, or in any forensic mental health

  8  facility, who have a reasonable belief that release of the

  9  information may be used to threaten, intimidate, harass,

10  inflict violence upon, or defraud the employee, are exempt

11  from the provisions of subsection (1) and s.24(a).Art.I of the

12  State Constitution. The employing and licensing agencies shall

13  withhold the home address and home telephone number from

14  public records requirements only if the health care

15  practitioner submits a written request to the agencies.

16         Section 2.  The Legislature finds that it is a public

17  necessity that the home addresses and home telephone numbers

18  of health care practitioners who work in or with any type of

19  correctional facility, including any prison or jail, or in any

20  forensic mental health facility and who have a reasonable

21  belief that release of the information may be used to

22  threaten, stalk, intimidate, harass, inflict violence upon, or

23  defraud the employee or a member of the employee's family, be

24  held exempt from public records requirements because revealing

25  such information may pose an unnecessary risk to the safety

26  and well-being of such health care practitioners in their own

27  homes from inmates or clients of such facilities. The

28  disclosure of such information may also deter health care

29  practitioners from seeking to work or working in such

30  facilities, which would be contrary to the state's interest in

31


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                                         HB 2101, Second Engrossed



  1  ensuring the availability of health care service in such

  2  facilities.

  3         Section 3.  Section 455.5656, Florida Statutes, is

  4  amended to read:

  5         455.5656  Practitioner's profiles; confidentiality.--

  6         (1)  Any patient name or other information that

  7  identifies a patient which is in a record obtained by the

  8  Department of Health or its agent for the purpose of compiling

  9  a practitioner profile is confidential and exempt from the

10  provisions of chapter 119 and s. 24(a), Art. I of the State

11  Constitution.  Other data received by the department or its

12  agent as a result of its duty to compile and promulgate

13  practitioner profiles are confidential and exempt from the

14  provisions of chapter 119 and s. 24(a), Art. I of the State

15  Constitution until the profile into which the data are

16  incorporated or with respect to which the data are submitted

17  is made public. Any information or record that the Department

18  of Health obtains from the Agency for Health Care

19  Administration or any other governmental entity for the

20  purpose of compiling a practitioner profile or substantiating

21  other information or records submitted for that purpose and

22  that was exempt from the provisions of chapter 119 and s.

23  24(a), Art. I of the State Constitution does not lose that

24  character by coming into the possession of the Department of

25  Health, and such information or record continues to be exempt

26  from the provisions of chapter 119 and s. 24(a), Art. I of the

27  State Constitution.

28         (2)(a)  The provisions of subsection (1) with respect

29  to practitioners who are subject to profiling under s. 455.565

30  are This section is subject to the Open Government Sunset

31  Review Act of 1995 in accordance with s. 119.15 and shall


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                                         HB 2101, Second Engrossed



  1  stand repealed on October 2, 2002, unless reviewed and saved

  2  from repeal through reenactment by the Legislature.

  3         (b)  The provisions of subsection (1) with respect to

  4  practitioners who are subject to profiling under s. 455.56503

  5  or s. 455.56505 are subject to the Open Government Sunset

  6  Review Act of 1995 in accordance with s. 119.15 and shall

  7  stand repealed on October 2, 2005, unless reviewed and saved

  8  from repeal through reenactment by the Legislature.

  9         Section 4.  The Legislature finds that public release

10  of a patient record or other document which includes a

11  statement of the patient's medical disease, condition, or

12  treatment plan that identifies the patient by name or by other

13  identifier could result in serious and irreparable damage to

14  the patient. Such records obtained by the Department of Health

15  or its agent for purposes of compiling a practitioner profile,

16  if open to the public, may adversely affect the integrity and

17  trust of the practitioner-patient relationship and may deter

18  affected parties from seeking needed health care services;

19  therefore, it is a matter of public necessity to protect the

20  confidentiality of such patient health information. The

21  Legislature further finds that, because of the nature of the

22  data submitted to the Department of Health or its agent for

23  purposes of constructing practitioner profiles, the necessity

24  of ensuring the accuracy of those data, the need to refrain

25  from unnecessarily affecting the livelihood of persons who are

26  the subject of practitioner profiles, and the need to maintain

27  the integrity and trust of the practitioner-patient

28  relationship without unwarranted aspersions on the

29  professional competence and ability of these persons, it is a

30  matter of public necessity to protect the confidentiality of

31  the data during the period of their verification. The


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                                         HB 2101, Second Engrossed



  1  Legislature further finds that the need to learn or verify

  2  information about health care practitioners, though furthering

  3  a state interest, does not override the public policy

  4  determinations made to exempt certain information from public

  5  disclosure and that records so exempted should retain that

  6  status when obtained and used by another governmental entity.

  7         Section 5.  Paragraphs (a) and (c) of subsection (4) of

  8  section 943.0585, Florida Statutes, are amended to read:

  9         943.0585  Court-ordered expunction of criminal history

10  records.--The courts of this state have jurisdiction over

11  their own procedures, including the maintenance, expunction,

12  and correction of judicial records containing criminal history

13  information to the extent such procedures are not inconsistent

14  with the conditions, responsibilities, and duties established

15  by this section.  Any court of competent jurisdiction may

16  order a criminal justice agency to expunge the criminal

17  history record of a minor or an adult who complies with the

18  requirements of this section.  The court shall not order a

19  criminal justice agency to expunge a criminal history record

20  until the person seeking to expunge a criminal history record

21  has applied for and received a certificate of eligibility for

22  expunction pursuant to subsection (2).  A criminal history

23  record that relates to a violation of chapter 794, s. 800.04,

24  s. 817.034, s. 827.071, chapter 839, s. 893.135, or a

25  violation enumerated in s. 907.041 may not be expunged,

26  without regard to whether adjudication was withheld, if the

27  defendant was found guilty of or pled guilty or nolo

28  contendere to the offense, or if the defendant, as a minor,

29  was found to have committed, or pled guilty or nolo contendere

30  to committing, the offense as a delinquent act. The court may

31  only order expunction of a criminal history record pertaining


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                                         HB 2101, Second Engrossed



  1  to one arrest or one incident of alleged criminal activity,

  2  except as provided in this section. The court may, at its sole

  3  discretion, order the expunction of a criminal history record

  4  pertaining to more than one arrest if the additional arrests

  5  directly relate to the original arrest. If the court intends

  6  to order the expunction of records pertaining to such

  7  additional arrests, such intent must be specified in the

  8  order. A criminal justice agency may not expunge any record

  9  pertaining to such additional arrests if the order to expunge

10  does not articulate the intention of the court to expunge a

11  record pertaining to more than one arrest. This section does

12  not prevent the court from ordering the expunction of only a

13  portion of a criminal history record pertaining to one arrest

14  or one incident of alleged criminal activity.  Notwithstanding

15  any law to the contrary, a criminal justice agency may comply

16  with laws, court orders, and official requests of other

17  jurisdictions relating to expunction, correction, or

18  confidential handling of criminal history records or

19  information derived therefrom.  This section does not confer

20  any right to the expunction of any criminal history record,

21  and any request for expunction of a criminal history record

22  may be denied at the sole discretion of the court.

23         (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

24  criminal history record of a minor or an adult which is

25  ordered expunged by a court of competent jurisdiction pursuant

26  to this section must be physically destroyed or obliterated by

27  any criminal justice agency having custody of such record;

28  except that any criminal history record in the custody of the

29  department must be retained in all cases. A criminal history

30  record ordered expunged that is retained by the department is

31  confidential and exempt from the provisions of s. 119.07(1)


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                                         HB 2101, Second Engrossed



  1  and s. 24(a), Art. I of the State Constitution and not

  2  available to any person or entity except upon order of a court

  3  of competent jurisdiction. A criminal justice agency may

  4  retain a notation indicating compliance with an order to

  5  expunge.

  6         (a)  The person who is the subject of a criminal

  7  history record that is expunged under this section or under

  8  other provisions of law, including former s. 893.14, former s.

  9  901.33, and former s. 943.058, may lawfully deny or fail to

10  acknowledge the arrests covered by the expunged record, except

11  when the subject of the record:

12         1.  Is a candidate for employment with a criminal

13  justice agency;

14         2.  Is a defendant in a criminal prosecution;

15         3.  Concurrently or subsequently petitions for relief

16  under this section or s.943.059;

17         4.  Is a candidate for admission to The Florida Bar;

18         5.  Is seeking to be employed or licensed by or to

19  contract with the Department of Children and Family Services

20  or the Department of Juvenile Justice or to be employed or

21  used by such contractor or licensee in a sensitive position

22  having direct contact with children, the developmentally

23  disabled, the aged, or the elderly as provided in s.

24  110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.

25  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

26  415.1075(4), s. 985.407, or chapter 400; or

27         6.  Is seeking to be employed or licensed by the Office

28  of Teacher Education, Certification, Staff Development, and

29  Professional Practices of the Department of Education, any

30  district school board, or any local governmental entity that

31  licenses child care facilities; or.


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                                         HB 2101, Second Engrossed



  1         7.  Is seeking to be employed or licensed by or to

  2  contract with the Department of Health or to be employed or

  3  used by such contractor or licensee in a sensitive position

  4  having direct contact with children, the developmentally

  5  disabled, the aged, or the elderly as provided in s.

  6  110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.

  7  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

  8  415.1075(4), s. 985.407, or chapter 400.

  9         (b)  Subject to the exceptions in paragraph (a), a

10  person who has been granted an expunction under this section,

11  former s. 893.14, former s. 901.33, or former s. 943.058 may

12  not be held under any provision of law of this state to commit

13  perjury or to be otherwise liable for giving a false statement

14  by reason of such person's failure to recite or acknowledge an

15  expunged criminal history record.

16         (c)1.  Information relating to the existence of an

17  expunged criminal history record which is provided in

18  accordance with subparagraphs (a)1.-6. paragraph (a) is

19  confidential and exempt from the provisions of s. 119.07(1)

20  and s. 24(a), Art. I of the State Constitution, except that

21  the department shall disclose the existence of a criminal

22  history record ordered expunged to the entities set forth in

23  subparagraphs (a)1., 4., 5., and 6. for their respective

24  licensing and employment purposes, and to criminal justice

25  agencies for their respective criminal justice purposes.  It

26  is unlawful for any employee of an entity set forth in

27  subparagraph (a)1., subparagraph (a)4., subparagraph (a)5., or

28  subparagraph (a)6. to disclose information relating to the

29  existence of an expunged criminal history record of a person

30  seeking employment or licensure with such entity or

31  contractor, except to the person to whom the criminal history


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                                         HB 2101, Second Engrossed



  1  record relates or to persons having direct responsibility for

  2  employment or licensure decisions. Any person who violates

  3  this subparagraph paragraph commits a misdemeanor of the first

  4  degree, punishable as provided in s. 775.082 or s. 775.083.

  5         2.  Information relating to the existence of an

  6  expunged criminal history record which is provided in

  7  accordance with subparagraph (a)7. is confidential and exempt

  8  from the provisions of s. 119.07(1) and s. 24(a), Art. I of

  9  the State Constitution, except that the department shall

10  disclose the existence of a criminal history record ordered

11  expunged to the Department of Health as set forth in

12  subparagraph (a)7. for its licensing and employment purposes,

13  and to criminal justice agencies for their respective criminal

14  justice purposes. It is unlawful for any employee of the

15  Department of Health as set forth in subparagraph (a)7. to

16  disclose information relating to the existence of an expunged

17  criminal history record of a person seeking employment or

18  licensure with such entity or contractor, except to the person

19  to whom the criminal history record relates, to persons having

20  direct responsibility for employment or licensure decisions,

21  or to any other state agency that is authorized in this state

22  to receive expunged criminal history records from the

23  department. Any person who violates this subparagraph commits

24  a misdemeanor of the first degree, punishable as provided in

25  s. 775.082 or s. 775.083. This subparagraph is subject to the

26  Open Government Sunset Review Act of 1995 in accordance with

27  s. 119.15 and shall stand repealed on October 2, 2005, unless

28  reviewed and saved from repeal through reenactment by the

29  Legislature.

30         Section 6.  In any court proceeding to enforce an order

31  by the Department of Health to compel a licensed health care


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                                         HB 2101, Second Engrossed



  1  practitioner to submit to a mental or physical examination by

  2  physicians designated by the department under section 455.624,

  3  Florida Statutes, the licensee against whom the petition for

  4  enforcement is filed may not be named or identified by

  5  initials in any public court records or documents and is

  6  confidential and exempt from the provisions of chapter 119,

  7  Florida Statutes, and Section (24)(a), Article I of the State

  8  Constitution, and the proceedings shall be closed to the

  9  public. This section is subject to the Open Government Sunset

10  Review Act of 1995 in accordance with section 119.15, Florida

11  Statutes, and shall stand repealed on October 2, 2005, unless

12  reviewed and saved from repeal through reenactment by the

13  Legislature.

14         Section 7.  Paragraph (a) of subsection (4) of section

15  943.059, Florida Statutes, is amended to read:

16         943.059  Court-ordered sealing of criminal history

17  records.--The courts of this state shall continue to have

18  jurisdiction over their own procedures, including the

19  maintenance, sealing, and correction of judicial records

20  containing criminal history information to the extent such

21  procedures are not inconsistent with the conditions,

22  responsibilities, and duties established by this section.  Any

23  court of competent jurisdiction may order a criminal justice

24  agency to seal the criminal history record of a minor or an

25  adult who complies with the requirements of this section.  The

26  court shall not order a criminal justice agency to seal a

27  criminal history record until the person seeking to seal a

28  criminal history record has applied for and received a

29  certificate of eligibility for sealing pursuant to subsection

30  (2).  A criminal history record that relates to a violation of

31  chapter 794, s. 800.04, s. 817.034, s. 827.071, chapter 839,


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                                         HB 2101, Second Engrossed



  1  s. 893.135, or a violation enumerated in s. 907.041 may not be

  2  sealed, without regard to whether adjudication was withheld,

  3  if the defendant was found guilty of or pled guilty or nolo

  4  contendere to the offense, or if the defendant, as a minor,

  5  was found to have committed or pled guilty or nolo contendere

  6  to committing the offense as a delinquent act.  The court may

  7  only order sealing of a criminal history record pertaining to

  8  one arrest or one incident of alleged criminal activity,

  9  except as provided in this section. The court may, at its sole

10  discretion, order the sealing of a criminal history record

11  pertaining to more than one arrest if the additional arrests

12  directly relate to the original arrest.  If the court intends

13  to order the sealing of records pertaining to such additional

14  arrests, such intent must be specified in the order.  A

15  criminal justice agency may not seal any record pertaining to

16  such additional arrests if the order to seal does not

17  articulate the intention of the court to seal records

18  pertaining to more than one arrest.  This section does not

19  prevent the court from ordering the sealing of only a portion

20  of a criminal history record pertaining to one arrest or one

21  incident of alleged criminal activity. Notwithstanding any law

22  to the contrary, a criminal justice agency may comply with

23  laws, court orders, and official requests of other

24  jurisdictions relating to sealing, correction, or confidential

25  handling of criminal history records or information derived

26  therefrom.  This section does not confer any right to the

27  sealing of any criminal history record, and any request for

28  sealing a criminal history record may be denied at the sole

29  discretion of the court.

30         (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A

31  criminal history record of a minor or an adult which is


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                                         HB 2101, Second Engrossed



  1  ordered sealed by a court of competent jurisdiction pursuant

  2  to this section is confidential and exempt from the provisions

  3  of s. 119.07(1) and s. 24(a), Art. I of the State Constitution

  4  and is available only to the person who is the subject of the

  5  record, to the subject's attorney, to criminal justice

  6  agencies for their respective criminal justice purposes, or to

  7  those entities set forth in subparagraphs (a)1., 4., 5., and

  8  6. for their respective licensing and employment purposes.

  9         (a)  The subject of a criminal history record sealed

10  under this section or under other provisions of law, including

11  former s. 893.14, former s. 901.33, and former s. 943.058, may

12  lawfully deny or fail to acknowledge the arrests covered by

13  the sealed record, except when the subject of the record:

14         1.  Is a candidate for employment with a criminal

15  justice agency;

16         2.  Is a defendant in a criminal prosecution;

17         3.  Concurrently or subsequently petitions for relief

18  under this section or s. 943.0585;

19         4.  Is a candidate for admission to The Florida Bar;

20         5.  Is seeking to be employed or licensed by or to

21  contract with the Department of Children and Family Services

22  or the Department of Juvenile Justice or to be employed or

23  used by such contractor or licensee in a sensitive position

24  having direct contact with children, the developmentally

25  disabled, the aged, or the elderly as provided in s.

26  110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.

27  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

28  415.103, s. 985.407, or chapter 400; or

29         6.  Is seeking to be employed or licensed by or to

30  contract with the Department of Health or to be employed or

31  used by such contractor or licensee in a sensitive position


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                                         HB 2101, Second Engrossed



  1  having direct contact with children, the developmentally

  2  disabled, the aged, or the elderly as provided in s.

  3  110.1127(3), s.393.063(15), s. 394.4572(1), s. 397.451, s.

  4  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

  5  415.1075(4), s. 985.407, or chapter 400; or

  6         7.6.  Is seeking to be employed or licensed by the

  7  Office of Teacher Education, Certification, Staff Development,

  8  and Professional Practices of the Department of Education, any

  9  district school board, or any local governmental entity which

10  licenses child care facilities.

11         Section 8.  The Legislature finds that public release

12  of sealed or expunged criminal history information on health

13  care practitioners seeking employment, licensure, or a

14  contract with the Department of Health to work with children,

15  the developmentally disabled, the aged, or the elderly may

16  adversely affect the integrity and trust of such a

17  practitioner-patient relationship, may deter affected parties

18  from seeking needed health care services as a result, and may

19  cast unwarranted aspersions on the professional competence and

20  ability of such practitioners and thereby affect their

21  livelihood; therefore, it is a matter of public necessity to

22  protect the confidentiality of such information. The

23  Legislature further finds that such information is already

24  confidential under identical circumstances for persons seeking

25  employment, licensure, or a contract with the Department of

26  Children and Family Services and the Department of Juvenile

27  Justice. The Legislature further finds that the need to learn

28  or verify information about health care practitioners, though

29  furthering a state interest, does not override the public

30  policy determinations made to exempt certain information from

31  public disclosure and that records so exempted should retain


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                                         HB 2101, Second Engrossed



  1  that status when obtained and used by another governmental

  2  entity.

  3         Section 9.  The Legislature finds that public release

  4  of medical information pertaining to the mental or physical

  5  condition of a patient could result in serious and irreparable

  6  damage to the patient.  The Legislature further finds that

  7  there is a public necessity in maintaining the confidentiality

  8  of such medical records and that a patient should not lose

  9  such protection simply because that patient has applied for or

10  been issued a license to practice a health care profession in

11  this state.  The Legislature finds that absent a finding of

12  probable cause that the applicant or practitioner has violated

13  the law and poses a danger to the patients to whom the

14  practitioner may provide health care services, such

15  practitioner should be afforded the same privileges and rights

16  of confidentiality as non-health care practitioners.  The

17  Legislature finds that it is a matter of public necessity to

18  protect health care practitioners, as well as other patients,

19  from the release of information regarding the practitioner's

20  mental or physical health to refrain from unnecessarily

21  affecting the livelihood of practitioners and to maintain the

22  trust of the practitioner-patient relationship without

23  unwarranted aspersions on the professional competence and

24  ability of these persons.  Moreover, the Legislature finds

25  that the public's need to know information about practitioners

26  does not override the public policy determination to protect

27  all patients regardless of their occupation or licensure

28  status from intrusion.  Furthermore, this public records

29  exemption conforms to existing public records exemptions for

30  other practitioners such as physicians pursuant to ss.

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                                         HB 2101, Second Engrossed



  1  458.331(1)(s) and 459.015(1)(w), dentists pursuant to s.

  2  466.028(1)(s), and others.

  3         Section 10.  This act shall take effect on the

  4  effective date of House Bill 1659 or similar legislation

  5  creating s. 455.56503 or s. 455.56505, Florida Statutes, to

  6  provide for practitioner profiling of additional health care

  7  practitioners, and s. 943.0585(4)(a)7., Florida Statutes, to

  8  provide the Department of Health access to expunged criminal

  9  history information on health care practitioners seeking to

10  work with children, the developmentally disabled, or the aged

11  or elderly, if such legislation is adopted in the same

12  legislative session or an extension thereof.

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