Senate Bill 2394c1

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    Florida Senate - 2000                           CS for SB 2394

    By the Committee on Health, Aging and Long-Term Care; and
    Senator Campbell




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  1                      A bill to be entitled

  2         An act relating to public records; amending s.

  3         119.07, F.S.; providing an exemption for home

  4         addresses and home telephone numbers of certain

  5         health care practitioners who work in

  6         correctional facilities and who are licensed by

  7         the Department of Health; amending s. 455.5656,

  8         F.S.; 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 exemption from public

18         records requirements for identity of licensed

19         health professionals who are subject to a

20         compelled mental or physical examination;

21         providing for future review and repeal;

22         providing findings of public necessity;

23         providing a contingent effective date.

24

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

26

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

28  of section 119.07, Florida Statutes, to read:

29         119.07  Inspection, examination, and duplication of

30  records; exemptions.--

31         (3)

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

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

  3  working in any type of correctional facility, including any

  4  prison or jail, or in any mental health facility, are exempt

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

  6  the State Constitution.

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

  8  necessity that the home addresses and home telephone numbers

  9  of health care practitioners who work in any type of

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

11  mental health facility, be held confidential and exempt from

12  public records requirements because revealing such information

13  may pose an unnecessary risk to the safety and well-being of

14  such health care practitioners in their own homes from inmates

15  or clients of such facilities who seek such information to

16  stalk, intimidate, harass, or otherwise threaten or harm such

17  health care practitioners. The disclosure of such information

18  may also deter health care practitioners from seeking to work

19  in such facilities, which would be contrary to the state's

20  interest in ensuring the availability of health care services

21  in such facilities.

22         Section 3.  Section 455.5656, Florida Statutes, is

23  amended to read:

24         455.5656  Practitioner's profiles; confidentiality.--

25         (1)  Any patient name or other information that

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

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

28  a practitioner profile is confidential and exempt from the

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

30  Constitution.  Other data received by the department or its

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

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  1  practitioner profiles are confidential and exempt from the

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

  3  Constitution until the profile into which the data are

  4  incorporated or with respect to which the data are submitted

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

  6  of Health obtains from the Agency for Health Care

  7  Administration or any other governmental entity for the

  8  purpose of compiling a practitioner profile or substantiating

  9  other information or records submitted for that purpose and

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

11  24(a), Art. I of the State Constitution does not lose that

12  character by coming into the possession of the Department of

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

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

15  State Constitution.

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

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

18  are This section is subject to the Open Government Sunset

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

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

21  from repeal through reenactment by the Legislature.

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

23  practitioners who are subject to profiling under s. 455.56505

24  are subject to the Open Government Sunset Review Act of 1995

25  in accordance with s. 119.15 and shall stand repealed on

26  October 2, 2005, unless reviewed and saved from repeal through

27  reenactment by the Legislature.

28         Section 4.  The Legislature finds that public release

29  of a patient record or other document that includes a

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

31  treatment plan and identifies a patient by name or by other

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  1  identifier could result in serious and irreparable damage to

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

  3  or its agent for purposes of compiling a practitioner profile

  4  if open to the public may adversely affect the integrity and

  5  trust of the practitioner-patient relationship and may deter

  6  affected parties from seeking needed health care services;

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

  8  confidentiality of such patient health information. The

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

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

11  purposes of constructing practitioner profiles, the necessity

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

13  from unnecessarily affecting the livelihood of persons who are

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

15  the integrity and trust of the practitioner-patient

16  relationship without unwarranted aspersions on the

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

18  matter of public necessity to protect the confidentiality of

19  the data during the period of their verification. The

20  Legislature further finds that the need to learn or verify

21  information about health care practitioners, though furthering

22  a state interest, does not override the public policy

23  determinations made to exempt certain information from public

24  disclosure and that records so exempted should retain that

25  status when obtained and used by another governmental entity.

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

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

28         943.0585  Court-ordered expunction of criminal history

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

30  their own procedures, including the maintenance, expunction,

31  and correction of judicial records containing criminal history

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  1  information to the extent such procedures are not inconsistent

  2  with the conditions, responsibilities, and duties established

  3  by this section.  Any court of competent jurisdiction may

  4  order a criminal justice agency to expunge the criminal

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

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

  7  criminal justice agency to expunge a criminal history record

  8  until the person seeking to expunge a criminal history record

  9  has applied for and received a certificate of eligibility for

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

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

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

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

14  without regard to whether adjudication was withheld, if the

15  defendant was found guilty of or pled guilty or nolo

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

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

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

19  only order expunction of a criminal history record pertaining

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

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

22  discretion, order the expunction of a criminal history record

23  pertaining to more than one arrest if the additional arrests

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

25  to order the expunction of records pertaining to such

26  additional arrests, such intent must be specified in the

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

28  pertaining to such additional arrests if the order to expunge

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

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

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

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  1  portion of a criminal history record pertaining to one arrest

  2  or one incident of alleged criminal activity.  Notwithstanding

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

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

  5  jurisdictions relating to expunction, correction, or

  6  confidential handling of criminal history records or

  7  information derived therefrom.  This section does not confer

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

  9  and any request for expunction of a criminal history record

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

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

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

13  ordered expunged by a court of competent jurisdiction pursuant

14  to this section must be physically destroyed or obliterated by

15  any criminal justice agency having custody of such record;

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

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

18  record ordered expunged that is retained by the department is

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

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

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

22  of competent jurisdiction. A criminal justice agency may

23  retain a notation indicating compliance with an order to

24  expunge.

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

26  history record that is expunged under this section or under

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

28  901.33, and former s. 943.058, may lawfully deny or fail to

29  acknowledge the arrests covered by the expunged record, except

30  when the subject of the record:

31

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  1         1.  Is a candidate for employment with a criminal

  2  justice agency;

  3         2.  Is a defendant in a criminal prosecution;

  4         3.  Concurrently or subsequently petitions for relief

  5  under this section or s. 943.059;

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

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

  8  contract with the Department of Children and Family Services

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

10  used by such contractor or licensee in a sensitive position

11  having direct contact with children, the developmentally

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

13  110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.

14  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

15  415.1075(4), s. 985.407, or chapter 400; or

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

17  of Teacher Education, Certification, Staff Development, and

18  Professional Practices of the Department of Education, any

19  district school board, or any local governmental entity that

20  licenses child care facilities; or.

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

22  contract with the Department of Health 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  415.1075(4), s. 985.407, or chapter 400.

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

30  expunged criminal history record which is provided in

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

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

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

  3  the department shall disclose the existence of a criminal

  4  history record ordered expunged to the entities set forth in

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

  6  licensing and employment purposes, and to criminal justice

  7  agencies for their respective criminal justice purposes.  It

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

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

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

11  existence of an expunged criminal history record of a person

12  seeking employment or licensure with such entity or

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

14  record relates or to persons having direct responsibility for

15  employment or licensure decisions. Any person who violates

16  this subparagraph paragraph commits a misdemeanor of the first

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

18         2.  Information relating to the existence of an

19  expunged criminal history record which is provided in

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

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

22  the State Constitution, except that the department shall

23  disclose the existence of a criminal history record ordered

24  expunged to the Department of Health as set forth in

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

26  and to criminal justice agencies for their respective criminal

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

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

29  disclose information relating to the existence of an expunged

30  criminal history record of a person seeking employment or

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

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

  2  direct responsibility for employment or licensure decisions,

  3  or to another state agency that is authorized in this state to

  4  receive expunged criminal history records from the department.

  5  Any person who violates this subparagraph commits a

  6  misdemeanor of the first degree, punishable as provided in s.

  7  775.082 or s. 775.083. This subparagraph is subject to the

  8  Open Government Sunset Review Act of 1995 in accordance with

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

10  reviewed and saved from repeal through reenactment by the

11  Legislature.

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

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

14  practitioner to submit to a mental or physical examination by

15  physicians designated by the department under section 455.624,

16  Florida Statutes, the licensee against whom the petition for

17  enforcement is filed may not be named or identified by

18  initials in any public court records or documents and is

19  confidential and exempt from the provisions of chapter 119,

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

21  Constitution, and the proceedings shall be closed to the

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

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

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

25  reviewed and saved from repeal through reenactment by the

26  Legislature.

27         Section 7.  The Legislature finds that public release

28  of expunged criminal history information on health care

29  practitioners seeking employment, licensure, or a contract

30  with the Department of Health to work with children, the

31  developmentally disabled, the aged, or the elderly may

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  1  adversely affect the integrity and trust of such a

  2  practitioner-patient relationship, may deter affected parties

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

  4  cast unwarranted aspersions on the professional competence and

  5  ability of such practitioners and thereby affect their

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

  7  protect the confidentiality of such information. The

  8  Legislature finds that the disclosure of information, and the

  9  holding of public meetings, regarding the impairment of a

10  licensed health care practitioner may deter such practitioners

11  from seeking needed treatment and that it is a matter of

12  public necessity to protect the confidentiality of such

13  information. The Legislature further finds that such

14  information is already confidential under identical

15  circumstances for persons seeking employment, licensure, or a

16  contract with the Department of Children and Family Services

17  and the Department of Juvenile Justice. The Legislature

18  further finds that the need to learn or verify information

19  about health care practitioners, though furthering a state

20  interest, does not override the public policy determinations

21  made to exempt certain information from public disclosure and

22  that records so exempted should retain that status when

23  obtained and used by another governmental entity.

24         Section 8.  This act shall take effect on the effective

25  date of Committee Substitute for Senate Bill 2354 or similar

26  legislation creating section 455.56505, Florida Statutes, to

27  provide for practitioner profiling of additional health care

28  practitioners.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 2394

  3

  4  The bill is revised to include a Public Records Law exemption
    for the name or initials in any public court records or
  5  documents of any licensed health care practitioner regulated
    by the Division of Medical Quality Assurance within the
  6  Department of Health who is the subject of court proceedings
    to compel the licensee to submit to a physical or mental
  7  examination, and for home addresses and home telephone numbers
    of health care practitioners, as defined in s.
  8  455.501(4),F.S., working in any type of correctional facility,
    including any prison or jail, or in any mental health
  9  facility.

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