HB 1797

1	A bill to be entitled
2	An act relating to access to adverse medical incident
3	records; creating s. 381.028, F.S.; providing a popular
4	name; providing a purpose; providing legislative findings;
5	providing definitions; specifying a patient's right of
6	access to records relating to adverse medical incidents;
7	prohibiting disclosure of a patient's identity and
8	requiring the maintenance of federal privacy restrictions;
9	providing application; providing construction; limiting
10	the discoverability or admissibility into evidence of
11	certain records; providing requirements and limitations
12	for health care facilities and health care providers in
13	the production of records, including copy fees; providing
14	an effective date.
15
16	Be It Enacted by the Legislature of the State of Florida:
17
18	Section 1.  Section 381.028, Florida Statutes, is created
19	to read:
20	381.028  Adverse medical incidents.--
21	(1)  POPULAR NAME.--This section may be cited as the
22	"Patients' Right to Know about Adverse Medical Incidents Act."
23	(2)  PURPOSE; LEGISLATIVE FINDINGS.--It is the purpose of
24	this section to implement s. 25, Art. X of the State
25	Constitution. The Legislature finds that s. 25, Art. X of the
26	State Constitution is intended to grant patient access to
27	records of adverse medical incidents made or received in the
28	course of business by a health care facility or provider and not
29	to repeal or otherwise modify existing laws regulating the use
30	of these records and the information contained therein. The
31	Legislature further finds that all existing laws extending
32	criminal and civil immunity to persons providing information to
33	quality-of-care committees or organizations and all existing
34	laws concerning the discoverability or admissibility into
35	evidence of records of an adverse medical incident in any
36	judicial or administrative proceeding should remain in full
37	force and effect.
38	(3)  DEFINITIONS.--As used in s. 25, Art. X of the State
39	Constitution and for purposes of this section:
40	(a)  "Agency" means the Agency for Health Care
41	Administration.
42	(b)  "Adverse medical incident" means medical negligence,
43	intentional misconduct, or any other act, neglect, or default of
44	a health care facility or health care provider that caused or
45	could have caused injury to or death of a patient, including,
46	but not limited to, those incidents that are required by state
47	or federal law to be reported to any governmental agency or body
48	and incidents that are reported to or reviewed by any health
49	care facility peer review, risk management, quality assurance,
50	credentials, or similar committee or any representative of any
51	such committee.
52	(c)  "Department" means the Department of Health.
53	(d)  "Access" means, in addition to any other procedure for
54	producing records provided by general law, making records
55	available for inspection and copying upon formal or informal
56	request by the patient or representative of the patient,
57	provided current records that have been made publicly available
58	by publication or on the Internet may be provided by reference
59	to the location at which the records are publicly available.
60	(e)  "Health care provider" means a physician licensed
61	under chapter 458 or chapter 459.
62	(f)  "Health care facility" means a facility licensed under
63	chapter 395.
64	(g)  "Identity" means any individually identifiable health
65	information as defined by the Health Insurance Portability and
66	Accountability Act of 1996 or its implementing regulations.
67	(h)  "Patient" means an individual who has sought, is
68	seeking, is undergoing, or has undergone care or treatment in a
69	health care facility or by a health care provider.
70	(i)  "Privacy restrictions imposed by federal law" means
71	the provisions relating to the disclosure of patient privacy
72	information under federal law, including, but not limited to,
73	the Health Insurance Portability and Accountability Act of 1996
74	(HIPAA), Public Law 104-91, and its implementing regulations,
75	the Federal Privacy Act, 5 U.S.C. s. 552(a), and its
76	implementing regulations, and any other federal law, including,
77	but not limited to, federal common law and decisional law, that
78	would prohibit the disclosure of patient privacy information.
79	(j)  "Records" means the final report of any adverse
80	medical incident. Medical records that are not the final report
81	of any adverse medical incident, including drafts or other
82	nonfinal versions or notes, and any documents or portions
83	thereof that constitute, contain, or reflect any attorney-client
84	communications or any attorney-client work product, shall not be
85	considered records for purposes of s. 25, Art. X of the State
86	Constitution and this section.
87	(k)  "Representative of the patient" means a parent of a
88	minor patient, a court-appointed guardian for the patient, a
89	health care surrogate, or a person holding a power of attorney
90	or notarized consent appropriately executed by the patient
91	granting permission to a health care facility or health care
92	provider to disclose the patient's health care information to
93	that person. The term "representative of the patient" in the
94	case of a deceased patient also means the personal
95	representative of the estate of the deceased patient; the
96	deceased patient's surviving spouse, surviving parent, or
97	surviving adult child; the parent or guardian of a surviving
98	minor child of the deceased patient; or the attorney for any of
99	such persons.
100	(4)  PATIENT RIGHT OF ACCESS.--Patients have a right of
101	access to any records made or received in the course of business
102	by a health care facility or health care provider relating to
103	any adverse medical incident. In providing access to these
104	records, the health care facility or health care provider shall
105	not disclose the identity of patients involved in the incidents
106	and shall maintain any privacy restrictions imposed by federal
107	law.
108	(5)  APPLICABILITY.--Section 25, Art. X of the State
109	Constitution shall apply to records created, incidents
110	occurring, and actions pending on or after November 3, 2004.
111	Section 25, Art. X of the State Constitution shall not apply to
112	records created, incidents occurring, or actions pending prior
113	to November 3, 2004. A patient requesting records on or after
114	November 3, 2008, shall be eligible to receive records created
115	within 4 years prior to the date of the request.
116	(6)  USES OF RECORDS.--
117	(a)  Nothing in this section shall be construed to repeal
118	or otherwise alter any existing restrictions on the
119	discoverability or admissibility of records relating to adverse
120	medical incidents otherwise provided by law, including, but not
121	limited to, restrictions contained in ss. 395.0191, 395.0193,
122	395.0197, 766.101, and 766.1016, or to repeal or otherwise alter
123	any immunity provided to, or prohibition against compelling
124	testimony by, persons providing information or participating in
125	any peer review panel, medical review committee, hospital
126	committee, or other hospital board otherwise provided by law,
127	including, but not limited to, ss. 395.0191, 395.0193, 766.101,
128	and 766.1016.
129	(b)  Except as otherwise provided by act of the
130	Legislature, records of adverse medical incidents, including any
131	information contained in such records, obtained pursuant to s.
132	25, Art. X of the State Constitution shall not be discoverable
133	or admissible into evidence for any purpose, including
134	impeachment in any civil or administrative action against a
135	health care facility or health care provider. This prohibition
136	includes information relating to performance or quality
137	improvement initiatives and information relating to the identity
138	of reviewers, complainants, or any person providing information
139	contained in or used in or person participating in the creation
140	of the records of adverse medical incidents.
141	(7)  PRODUCTION OF RECORDS.--
142	(a)  Pursuant to s. 25, Art. X of the State Constitution,
143	adverse medical incident records to which a patient is granted
144	access are those of the facility or provider of which he or she
145	is a patient and that pertain to any adverse medical incident
146	affecting the patient or affecting any other patient whose
147	condition, treatment, or diagnosis is the same as or
148	substantially similar to that of the patient requesting access.
149	(b)1.  Using the process provided in s. 395.0197, a health
150	care facility is responsible for identifying records as records
151	of an adverse medical incident, as defined in s. 25, Art. X of
152	the State Constitution.
153	2.  Using the process provided in s. 458.351, a health care
154	provider is responsible for identifying records as records of an
155	adverse medical incident, as defined in s. 25, Art. X of the
156	State Constitution, occurring in an office setting.
157	(c)1.  Fees charged by a health care facility for copies of
158	records requested by a patient pursuant to s. 25, Art. X of the
159	State Constitution shall not exceed the reasonable and actual
160	cost to comply with the request, including a reasonable charge
161	for the staff time necessary to prevent the disclosure of the
162	identity of any patient involved in the adverse medical incident
163	through redaction or other means as required by the Health
164	Insurance Portability and Accountability Act of 1996 or its
165	implementing regulations. The health care facility may require
166	payment, in full or in part, prior to acting on the records
167	request.
168	2.  Fees charged by a health care provider for copies of
169	records requested by a patient pursuant to s. 25, Art. X of the
170	State Constitution shall not exceed the amount established
171	pursuant to s. 456.057(16), which may include a reasonable
172	charge for the staff time necessary to prevent the disclosure of
173	the identity of any patient involved in the adverse medical
174	incident through redaction or other means as required by the
175	Health Insurance Portability and Accountability Act of 1996 or
176	its implementing regulations. The health care provider may
177	require payment, in full or in part, prior to acting on the
178	records request.
179	(d)1.  Requests for production of adverse medical incident
180	records shall be processed by a health care facility or health
181	care provider in a timely manner after having a reasonable
182	opportunity to determine whether the requested record is a
183	record subject to disclosure and to prevent the disclosure of
184	the identity of any patient involved in the adverse medical
185	incident through redaction or other means.
186	2.  A request for production of records must be submitted
187	in writing and identify the patient requesting access to the
188	records by name, address, and the last four digits of the
189	patient's social security number, describe the patient's
190	condition, treatment, or diagnosis, and provide the name of the
191	health care providers whose records are being sought.
192	Section 2.  This act shall take effect July 1, 2005.

CODING: Words stricken are deletions; words underlined are additions.