HB 1797

CS

CHAMBER ACTION

1	The Health Care Regulation Committee recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5	A bill to be entitled
6	An act relating to access to adverse medical incident
7	records; creating s. 381.028, F.S.; providing a popular
8	name; providing a purpose; providing legislative findings;
9	providing definitions; specifying a patient's right of
10	access to records relating to adverse medical incidents;
11	prohibiting disclosure of a patient's identity and
12	requiring the maintenance of federal privacy restrictions;
13	providing application; providing construction; limiting
14	the discoverability or admissibility into evidence of
15	certain records; providing requirements and limitations
16	for health care facilities and health care providers in
17	the production of records, including copy fees; providing
18	an effective date.
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20	Be It Enacted by the Legislature of the State of Florida:
21
22	Section 1.  Section 381.028, Florida Statutes, is created
23	to read:
24	381.028  Adverse medical incidents.--
25	(1)  POPULAR NAME.--This section may be cited as the
26	"Patients' Right to Know about Adverse Medical Incidents Act."
27	(2)  PURPOSE; LEGISLATIVE FINDINGS.--It is the purpose of
28	this section to implement s. 25, Art. X of the State
29	Constitution. The Legislature finds that s. 25, Art. X of the
30	State Constitution is intended to grant patient access to
31	records of adverse medical incidents made or received in the
32	course of business by a health care facility or provider and not
33	to repeal or otherwise modify existing laws regulating the use
34	of these records and the information contained therein. The
35	Legislature further finds that all existing laws extending
36	criminal and civil immunity to persons providing information to
37	quality-of-care committees or organizations and all existing
38	laws concerning the discoverability or admissibility into
39	evidence of records of an adverse medical incident in any
40	judicial or administrative proceeding should remain in full
41	force and effect.
42	(3)  DEFINITIONS.--As used in s. 25, Art. X of the State
43	Constitution and for purposes of this section:
44	(a)  "Adverse medical incident" means medical negligence,
45	intentional misconduct, or any other act, neglect, or default of
46	a health care facility or health care provider that caused or
47	could have caused injury to or death of a patient, including,
48	but not limited to, those incidents that are required by state
49	or federal law to be reported to any governmental agency or body
50	and incidents that are reported to or reviewed by any health
51	care facility peer review, risk management, quality assurance,
52	credentials, or similar committee or any representative of any
53	such committee.
54	(b)  "Access" means, in addition to any other procedure for
55	producing records provided by general law, making records
56	available for inspection and copying upon formal or informal
57	request by the patient or representative of the patient,
58	provided current records that have been made publicly available
59	by publication or on the Internet may be provided by reference
60	to the location at which the records are publicly available.
61	(c)  "Health care provider" means a physician licensed
62	under chapter 458 or chapter 459.
63	(d)  "Health care facility" means a facility licensed under
64	chapter 395.
65	(e)  "Identity" means any individually identifiable health
66	information as defined by the Health Insurance Portability and
67	Accountability Act of 1996 or its implementing regulations.
68	(f)  "Patient" means an individual who has sought, is
69	seeking, is undergoing, or has undergone care or treatment in a
70	health care facility or by a health care provider.
71	(g)  "Privacy restrictions imposed by federal law" means
72	the provisions relating to the disclosure of patient privacy
73	information under federal law, including, but not limited to,
74	the Health Insurance Portability and Accountability Act of 1996
75	(HIPAA), Public Law 104-91, and its implementing regulations,
76	the Federal Privacy Act, 5 U.S.C. s. 552(a), and its
77	implementing regulations, and any other federal law, including,
78	but not limited to, federal common law and decisional law, that
79	would prohibit the disclosure of patient privacy information.
80	(h)  "Records" means the final report of any adverse
81	medical incident. Medical records that are not the final report
82	of any adverse medical incident, including drafts or other
83	nonfinal versions or notes, and any documents or portions
84	thereof that constitute, contain, or reflect any attorney-client
85	communications or any attorney-client work product, shall not be
86	considered records for purposes of s. 25, Art. X of the State
87	Constitution and this section.
88	(i)  "Representative of the patient" means a parent of a
89	minor patient, a court-appointed guardian for the patient, a
90	health care surrogate, or a person holding a power of attorney
91	or notarized consent appropriately executed by the patient
92	granting permission to a health care facility or health care
93	provider to disclose the patient's health care information to
94	that person. The term "representative of the patient" in the
95	case of a deceased patient also means the personal
96	representative of the estate of the deceased patient; the
97	deceased patient's surviving spouse, surviving parent, or
98	surviving adult child; the parent or guardian of a surviving
99	minor child of the deceased patient; or the attorney for any of
100	such persons.
101	(4)  PATIENT RIGHT OF ACCESS.--Patients have a right of
102	access to any records made or received in the course of business
103	by a health care facility or health care provider relating to
104	any adverse medical incident. In providing access to these
105	records, the health care facility or health care provider shall
106	not disclose the identity of patients involved in the incidents
107	and shall maintain any privacy restrictions imposed by federal
108	law.
109	(5)  APPLICABILITY.--Section 25, Art. X of the State
110	Constitution shall apply to records created and incidents
111	occurring on or after November 3, 2004. Section 25, Art. X of
112	the State Constitution shall not apply to records created or
113	incidents occurring prior to November 3, 2004. A patient
114	requesting records on or after November 3, 2008, shall be
115	eligible to receive records created within 4 years prior to the
116	date of the request.
117	(6)  USES OF RECORDS.--
118	(a)  Nothing in this section shall be construed to repeal
119	or otherwise alter any existing restrictions on the
120	discoverability or admissibility of records relating to adverse
121	medical incidents otherwise provided by law, including, but not
122	limited to, restrictions contained in ss. 395.0191, 395.0193,
123	395.0197, 766.101, and 766.1016, or to repeal or otherwise alter
124	any immunity provided to, or prohibition against compelling
125	testimony by, persons providing information or participating in
126	any peer review panel, medical review committee, hospital
127	committee, or other hospital board otherwise provided by law,
128	including, but not limited to, ss. 395.0191, 395.0193, 766.101,
129	and 766.1016.
130	(b)  Except as otherwise provided by act of the
131	Legislature, records of adverse medical incidents, including any
132	information contained in such records, obtained pursuant to s.
133	25, Art. X of the State Constitution shall not be discoverable
134	or admissible into evidence for any purpose, including
135	impeachment in any civil or administrative action against a
136	health care facility or health care provider. This prohibition
137	includes information relating to performance or quality
138	improvement initiatives and information relating to the identity
139	of reviewers, complainants, or any person providing information
140	contained in or used in or person participating in the creation
141	of the records of adverse medical incidents.
142	(7)  PRODUCTION OF RECORDS.--
143	(a)  Pursuant to s. 25, Art. X of the State Constitution,
144	adverse medical incident records to which a patient is granted
145	access are those of the facility or provider of which he or she
146	is a patient and that pertain to any adverse medical incident
147	affecting the patient or affecting any other patient whose
148	condition, treatment, or diagnosis is the same as or
149	substantially similar to that of the patient requesting access.
150	(b)1.  Using the process provided in s. 395.0197, a health
151	care facility is responsible for identifying records as records
152	of an adverse medical incident, as defined in s. 25, Art. X of
153	the State Constitution.
154	2.  Using the process provided in s. 458.351 or s. 459.026,
155	a health care provider is responsible for identifying records as
156	records of an adverse medical incident, as defined in s. 25,
157	Art. X of the State Constitution, occurring in an office
158	setting.
159	(c)1.  Fees charged by a health care facility for copies of
160	records requested by a patient pursuant to s. 25, Art. X of the
161	State Constitution shall not exceed the reasonable and actual
162	cost to comply with the request, including a reasonable charge
163	for the staff time necessary to prevent the disclosure of the
164	identity of any patient involved in the adverse medical incident
165	through redaction or other means as required by the Health
166	Insurance Portability and Accountability Act of 1996 or its
167	implementing regulations. The health care facility may require
168	payment, in full or in part, prior to acting on the records
169	request.
170	2.  Fees charged by a health care provider for copies of
171	records requested by a patient pursuant to s. 25, Art. X of the
172	State Constitution shall not exceed the amount established
173	pursuant to s. 456.057(16), which may include a reasonable
174	charge for the staff time necessary to prevent the disclosure of
175	the identity of any patient involved in the adverse medical
176	incident through redaction or other means as required by the
177	Health Insurance Portability and Accountability Act of 1996 or
178	its implementing regulations. The health care provider may
179	require payment, in full or in part, prior to acting on the
180	records request.
181	(d)1.  Requests for production of adverse medical incident
182	records shall be processed by a health care facility or health
183	care provider in a timely manner after having a reasonable
184	opportunity to determine whether the requested record is a
185	record subject to disclosure and to prevent the disclosure of
186	the identity of any patient involved in the adverse medical
187	incident through redaction or other means.
188	2.  A request for production of records must be submitted
189	in writing and identify the patient requesting access to the
190	records by name, address, and the last four digits of the
191	patient's social security number, describe the patient's
192	condition, treatment, or diagnosis, and provide the name of the
193	health care providers whose records are being sought.
194	Section 2.  This act shall take effect July 1, 2005.

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