Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. PCS for SB 938 (095260)
Barcode 513244
CHAMBER ACTION
Senate House
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11 The Committee on Health Care (Saunders) recommended the
12 following amendment:
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14 Senate Amendment (with title amendment)
15 Delete everything after the enacting clause
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17 and insert:
18 Section 1. Section 381.028, Florida Statutes, is
19 created to read:
20 381.028 Adverse medical incidents.--
21 (1) SHORT TITLE.--This section may be cited as the
22 "Patients' Right-to-Know About Adverse Medical Incidents Act."
23 (2) PURPOSE.--It is the purpose of this act to
24 implement s. 25, Art. X of the State Constitution. The
25 Legislature finds that this section of the State Constitution
26 is intended to grant patient access to records of adverse
27 medical incidents, which records were made or received in the
28 course of business by a health care facility or provider, and
29 not to repeal or otherwise modify existing laws governing the
30 use of these records and the information contained therein.
31 The Legislature further finds that all existing laws extending
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. PCS for SB 938 (095260)
Barcode 513244
1 criminal and civil immunity to persons providing information
2 to quality-of-care committees or organizations and all
3 existing laws concerning the discoverability or admissibility
4 into evidence of records of an adverse medical incident in any
5 judicial or administrative proceeding remain in full force and
6 effect.
7 (3) DEFINITIONS.--As used in s. 25, Art. X of the
8 State Constitution and this act, the term:
9 (a) "Agency" means the Agency for Health Care
10 Administration.
11 (b) "Adverse medical incident" means medical
12 negligence, intentional misconduct, and any other act,
13 neglect, or default of a health care facility or health care
14 provider which caused or could have caused injury to or the
15 death of a patient, including, but not limited to, those
16 incidents that are required by state or federal law to be
17 reported to any governmental agency or body, incidents that
18 are reported to any governmental agency or body, and incidents
19 that are reported to or reviewed by any health care facility
20 peer review, risk management, quality assurance, credentials,
21 or similar committee or any representative of any such
22 committee.
23 (c) "Department" means the Department of Health.
24 (d) "Have access to any records" means, in addition to
25 any other procedure for producing the records provided by
26 general law, making the records available for inspection and
27 copying upon formal or informal request by the patient or a
28 representative of the patient, provided that current records
29 that have been made publicly available by publication or on
30 the Internet may be provided by reference to the location at
31 which the records are publicly available.
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. PCS for SB 938 (095260)
Barcode 513244
1 (e) "Health care provider" means a physician licensed
2 under chapter 458, chapter 459, or chapter 461.
3 (f) "Health care facility" means a facility licensed
4 under chapter 395.
5 (g) "Identity" means any "individually identifiable
6 health information" as defined by the Health Insurance
7 Portability and Accountability Act of 1996 or its implementing
8 regulations.
9 (h) "Patient" means an individual who has sought, is
10 seeking, is undergoing, or has undergone care or treatment in
11 a health care facility or by a health care provider.
12 (i) "Privacy restrictions imposed by federal law"
13 means the provisions relating to the disclosure of information
14 under federal law, including, but not limited to, the Health
15 Insurance Portability and Accountability Act of 1996, Pub. L.
16 No. 104-91 ("HIPAA") and its implementing regulations, and the
17 Federal Privacy Act, 5 U.S.C. s. 552(a) and its implementing
18 regulations, and any privilege, including, but not limited to,
19 the attorney-client privilege, the attorney work-product
20 privilege, or the self-critical analysis privilege, that has
21 been recognized under federal law which would prohibit
22 disclosure of information contained in the record.
23 (j) "Records" means the final report of any adverse
24 medical incident. Medical records that are not the final
25 report of any adverse medical incident, including drafts or
26 other nonfinal versions; notes; and any documents or portions
27 thereof which constitute, contain, or reflect any
28 attorney-client communications or any attorney-client work
29 product may not be considered "records" for purposes of s. 25,
30 Art. X of the State Constitution and this act.
31 (k) "Representative of the patient" means a parent of
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. PCS for SB 938 (095260)
Barcode 513244
1 a minor patient, a court-appointed guardian for the patient, a
2 health care surrogate, or a person holding a power of attorney
3 or notarized consent appropriately executed by the patient
4 granting permission to a health care facility or health care
5 provider to disclose the patient's health care information to
6 that person.
7 (4) PATIENTS' RIGHT OF ACCESS.--Patients have a right
8 to have access to any records made or received in the course
9 of business by a health care facility or health care provider
10 relating to any adverse medical incident. In providing access
11 to these records, the health care facility or health care
12 provider may not disclose the identity of patients involved in
13 the incidents and shall maintain any privacy restrictions
14 imposed by federal law.
15 (5) APPLICABILITY.--Section 25, Art. X of the State
16 Constitution applies to records created, incidents occurring,
17 and actions pending on or after November 2, 2004. Section 25,
18 Art. X of the State Constitution does not apply to records
19 created, incidents occurring, or actions pending before
20 November 2, 2004. A patient requesting records on or after
21 November 2, 2008, shall be eligible to receive records created
22 within 4 years before the date of the request.
23 (6) USE OF RECORDS.--
24 (a) This section does not repeal or otherwise alter
25 any existing restrictions on the discoverability or
26 admissibility of records relating to adverse medical incidents
27 otherwise provided by law, including, but not limited to,
28 those contained in ss. 395.0191, 395.0193, 395.0197, 766.101,
29 and 766.1016, or repeal or otherwise alter any immunity
30 provided to, or prohibition against compelling testimony by,
31 persons providing information or participating in any peer
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. PCS for SB 938 (095260)
Barcode 513244
1 review panel, medical review committee, hospital committee, or
2 other hospital board otherwise provided by law, including, but
3 not limited to, ss. 395.0191, 395.0193, 766.101, and 766.1016.
4 (b) Except as otherwise provided by act of the
5 Legislature, records of adverse medical incidents, including
6 any information contained therein, obtained under s. 25, Art.
7 X of the State Constitution, are not discoverable or
8 admissible into evidence and may not be used for any purpose,
9 including impeachment, in any civil or administrative action
10 against a health care facility or health care provider. This
11 includes information relating to performance or
12 quality-improvement initiatives and information relating to
13 the identity of reviewers, complainants, or any person
14 providing information contained in or used in, or any person
15 participating in the creation of the records of adverse
16 medical incidents.
17 (7) PRODUCTION OF RECORDS.--
18 (a) Pursuant to s. 25, Art. X of the State
19 Constitution, the adverse medical incident records to which a
20 patient is granted access are those of the facility or
21 provider of which he or she is a patient and which pertain to
22 any adverse medical incident affecting the patient or any
23 other patient which involves the same or substantially similar
24 condition, treatment, or diagnosis as that of the patient
25 requesting access.
26 (b)1. Using the process provided in s. 395.0197, the
27 health care facility shall be responsible for identifying
28 records as records of an adverse medical incident, as defined
29 in s. 25, Art. X of the State Constitution.
30 2. Using the process provided in s. 458.351, the
31 health care provider shall be responsible for identifying
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. PCS for SB 938 (095260)
Barcode 513244
1 records as records of an adverse medical incident, as defined
2 in s. 25, Art. X of the State Constitution, occurring in an
3 office setting.
4 (c) 1. Fees charged by a health care facility for
5 copies of records requested by a patient under s. 25, Art. X
6 of the State Constitution may not exceed the reasonable and
7 actual cost of complying with the request, including a
8 reasonable charge for the staff time necessary to search for
9 records and prevent the disclosure of the identity of any
10 patient involved in the adverse medical incident through
11 redaction or other means as required by the Health Insurance
12 Portability and Accountability Act of 1996 or its implementing
13 regulations. The health care facility may require payment, in
14 full or in part, before acting on the records request.
15 2. Fees charged by a health care provider for copies
16 of records requested by a patient under s. 25, Art. X of the
17 State Constitution may not exceed the amount established under
18 s. 456.057(16), which may include a reasonable charge for the
19 staff time necessary to prevent the disclosure of the identity
20 of any patient involved in the adverse medical incident
21 through redaction or other means as required by the Health
22 Insurance Portability and Accountability Act of 1996 or its
23 implementing regulations. The health care provider may require
24 payment, in full or in part, before acting on the records
25 request.
26 (d)1. Requests for production of adverse medical
27 incident records shall be processed by the health care
28 facility or health care provider in a timely manner, after
29 having a reasonable opportunity to determine whether or not
30 the requested record is a record subject to disclosure and to
31 prevent the disclosure of the identity of any patient involved
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. PCS for SB 938 (095260)
Barcode 513244
1 in the adverse medical incident through redaction or other
2 means.
3 2. A request for production of records must be
4 submitted in writing and must identify the patient requesting
5 access to the records by name, address, and the last four
6 digits of the patient's social security number; describe the
7 patient's condition, treatment, or diagnosis; and provide the
8 name of the health care providers whose records are being
9 sought.
10 (e) A patient receiving records involving any other
11 patient pursuant to this section shall maintain the
12 confidentiality of those records.
13 Section 2. This act shall take effect upon becoming a
14 law.
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17 ================ T I T L E A M E N D M E N T ===============
18 And the title is amended as follows:
19 Delete everything before the enacting clause
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21 and insert:
22 A bill to be entitled
23 An act relating to adverse medical incidents;
24 creating s. 381.028, F.S.; providing a short
25 title; providing a purpose; defining terms;
26 specifying patients' right of access to records
27 relating to an adverse medical incident;
28 prohibiting the disclosure of the identity of
29 certain patients; providing for maintaining
30 privacy restrictions imposed by federal law;
31 providing for the applicability of s. 25, Art.
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. PCS for SB 938 (095260)
Barcode 513244
1 X of the State Constitution; providing for
2 applicability of this section; providing
3 restrictions upon the use of the records;
4 providing for the identification and production
5 of the records; providing for fees charged for
6 copies of records; requiring patients to
7 maintain the confidentiality of records
8 pertaining to another patient; providing an
9 effective date.
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