Florida Senate - 2008 COMMITTEE AMENDMENT

Bill No. SB 1998

829958

CHAMBER ACTION

Senate

Comm: RCS

4/1/2008

House

The Committee on Health Regulation (Lawson) recommended the

following amendment:

Senate Amendment (with title amendment)

Delete everything after the enacting clause

and insert:

Section 1. Subsection (4) of section 395.3025, Florida

Statutes, is amended to read:

395.3025 Patient and personnel records; copies;

examination.--

(4) Patient records are confidential and must not be

disclosed without the consent of the patient or his or her legal

representative person to whom they pertain, but appropriate

disclosure may be made without such consent to:

(a) Licensed facility personnel, and attending physicians,

or other health care practitioners and providers currently

involved in the care or treatment of the patient for use only in

connection with the treatment of the patient.

(b) Licensed facility personnel only for administrative

purposes or risk management and quality assurance functions.

containment.

(d) In any civil or criminal action, unless otherwise

prohibited by law, upon the issuance of a subpoena from a court

of competent jurisdiction and proper notice by the party seeking

such records to the patient or his or her legal representative.

(e) The department agency upon subpoena issued pursuant to

s. 456.071, but the records obtained thereby must be used solely

for the purpose of the department agency and the appropriate

professional board in its investigation, prosecution, and appeal

of disciplinary proceedings. If the department agency requests

copies of the records, the facility shall charge no more than its

actual copying costs, including reasonable staff time. The

records must be sealed and must not be available to the public

pursuant to s. 119.07(1) or any other statute providing access to

records, nor may they be available to the public as part of the

record of investigation for and prosecution in disciplinary

proceedings made available to the public by the department agency

or the appropriate regulatory board. However, the department

agency must make available, upon written request by a

practitioner against whom probable cause has been found, any such

records that form the basis of the determination of probable

cause.

(f) The department of Health or its agent, for the purpose

of establishing and maintaining a trauma registry and for the

purpose of ensuring that hospitals and trauma centers are in

compliance with the standards and rules established under ss.

395.401, 395.4015, 395.4025, 395.404, 395.4045, and 395.405, and

for the purpose of monitoring patient outcome at hospitals and

trauma centers that provide trauma care services.

(g) The Department of Children and Family Services or its

agent, for the purpose of investigations of cases of abuse,

neglect, or exploitation of children or vulnerable adults.

(h) The State Long-Term Care Ombudsman Council and the

local long-term care ombudsman councils, with respect to the

records of a patient who has been admitted from a nursing home or

long-term care facility, when the councils are conducting an

investigation involving the patient as authorized under part II

of chapter 400, upon presentation of identification as a council

member by the person making the request. Disclosure under this

paragraph shall only be made after a competent patient or the

patient's representative has been advised that disclosure may be

made and the patient has not objected.

(i) A local trauma agency or a regional trauma agency that

performs quality assurance activities, or a panel or committee

assembled to assist a local trauma agency or a regional trauma

agency in performing quality assurance activities. Patient

records obtained under this paragraph are confidential and exempt

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

(j) Organ procurement organizations, tissue banks, and eye

banks required to conduct death records reviews pursuant to s.

395.2050.

(k) The Medicaid Fraud Control Unit in the Department of

Legal Affairs pursuant to s. 409.920.

(l) The Department of Financial Services, or an agent,

employee, or independent contractor of the department who is

auditing for unclaimed property pursuant to chapter 717.

(m) A regional poison control center for purposes of

treating a poison episode under evaluation, case management of

poison cases, or compliance with data collection and reporting

requirements of s. 395.1027 and the professional organization

that certifies poison control centers in accordance with federal

law.

Section 2. Subsection (4) of section 408.05, Florida

Statutes, is amended to read:

408.05 Florida Center for Health Information and Policy

Analysis.--

(4) TECHNICAL ASSISTANCE.--

(a) The center shall provide technical assistance to

persons or organizations engaged in health planning activities in

the effective use of statistics collected and compiled by the

center. The center shall also provide the following additional

technical assistance services:

1. Establish procedures identifying the circumstances under

which, the places at which, the persons from whom, and the

methods by which a person may secure data from the center,

including procedures governing requests, the ordering of

requests, timeframes for handling requests, and other procedures

necessary to facilitate the use of the center's data. To the

100

extent possible, the center should provide current data timely in

101

response to requests from public or private agencies.

102

2. Provide assistance to data sources and users in the

103

areas of database design, survey design, sampling procedures,

104

statistical interpretation, and data access to promote improved

105

health-care-related data sets.

106

3. Identify health care data gaps and provide technical

107

assistance to other public or private organizations for meeting

108

documented health care data needs.

109

4. Assist other organizations in developing statistical

110

abstracts of their data sets that could be used by the center.

111

5. Provide statistical support to state agencies with

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regard to the use of databases maintained by the center.

113

6. To the extent possible, respond to multiple requests for

114

information not currently collected by the center or available

115

from other sources by initiating data collection.

116

7. Maintain detailed information on data maintained by

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other local, state, federal, and private agencies in order to

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advise those who use the center of potential sources of data

119

which are requested but which are not available from the center.

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8. Respond to requests for data which are not available in

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published form by initiating special computer runs on data sets

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available to the center.

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9. Monitor innovations in health information technology,

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informatics, and the exchange of health information and maintain

125

a repository of technical resources to support the development of

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a statewide health information exchange network.

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(b) The agency shall administer, manage, and monitor grants

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to not-for-profit organizations, regional health information

129

organizations, public health departments, or state agencies that

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submit proposals for planning, implementation, or training

131

projects to advance the development of a health information

132

network. Any grant contract shall be evaluated to ensure the

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effective outcome of the health information project.

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(b)(c) The agency shall initiate, oversee, manage, and

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evaluate the integration of health care data from each state

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agency that collects, stores, and reports on health care issues

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and make that data available to any health care practitioner

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through a statewide state health information exchange network.

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Section 3. Section 408.051, Florida Statutes, is created to

140

read:

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408.051 Florida eHealth Initiative Act.--

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(1) SHORT TITLE.--This section may be cited as the "Florida

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eHealth Initiative Act."

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(2) LEGISLATIVE INTENT.--The Legislature recognizes that

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the exchange of electronic medical records will benefit consumers

146

by increasing the quality and efficiency of health care

147

throughout the state. It is the intent of the Legislature that

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the state promote and coordinate the establishment of a secure,

149

privacy-protected, and interconnected statewide health

150

information exchange.

151

(3) DEFINITIONS.--As used in this section, the term:

152

(a) "Electronic medical record" means a record of a

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person's medical treatment created by a licensed health care

154

provider and stored in an interoperable and accessible digital

155

format.

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(b) "Electronic medical records system" means an

157

application environment composed of at least two of the following

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systems: a clinical data repository; clinical decision support;

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controlled medical vocabulary; computerized provider order entry;

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pharmacy; or clinical documentation. The application must be used

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by health care practitioners to document, monitor, and manage

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health care delivery within a health care delivery system and

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must be capable of interoperability within a health information

164

exchange.

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system used to acquire, process, and transmit electronic medical

167

records that can be shared in real time among authorized health

168

care providers, health care facilities, health insurers, and

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other recipients, as authorized by law, to facilitate the

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provision of health care services.

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(d) "Health information organization" means an entity that

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has a formal structure and established policies and procedures

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and that serves as a neutral convener of local stakeholders to

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enable the secure and reliable exchange of electronic medical

175

records among authorized health care stakeholders within a

176

defined geographic region to facilitate improvements in health

177

care quality, safety, and coordination of care.

178

(4) MATCHING GRANTS.--

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(a) Subject to a specific appropriation, the agency shall

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award and monitor matching grants to health information

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organizations that submit proposals that advance the development

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of a statewide health information exchange. Funds awarded under

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this subsection shall be awarded on the basis of matching each $1

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of state funds with $1 of local or private funds. Local or

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private funds may be provided in the form of cash or in-kind

186

support or services. Grants may be awarded within the following

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categories: development, operation, and collaboration.

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(b) The agency shall, by rule, establish specific

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eligibility criteria for a health information organization to

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qualify for a grant under this subsection. These criteria shall

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include, at a minimum, documentation of the following:

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1. For development grants, the proposed organizational

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structure, the level of community support, including a list of

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key participants, a demonstration of available local or private

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matching funds, a timeline for development of the health

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information exchange, and proposed goals and metrics.

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2. For operation grants, a demonstration of available local

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or private matching funds and a detailed business plan, which

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shall include a timeline for implementation of the health

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information exchange, policies and procedures to protect the

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privacy and security of electronic medical records, and proposed

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goals and metrics.

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3. For collaboration grants, a demonstration of available

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local or private matching funds, memoranda of understanding

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between at least two health information organizations for the

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exchange of electronic medical records, a demonstration of

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consistent utilization of the health information exchange by

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members within each participating health information

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organization, and a detailed business plan, which shall include a

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timeline for the implementation of the exchange of electronic

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medical records between participating health information

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organizations, policies and procedures to protect the privacy and

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security of electronic medical records, and proposed goals and

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metrics.

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health information organization more than 6 aggregate years of

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funding.

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(d) The agency shall award grants in consultation with the

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Florida Health Information Exchange Advisory Council.

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(5) ELECTRONIC MEDICAL RECORDS SYSTEM ADOPTION LOAN

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PROGRAM.--

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(a) Subject to a specific appropriation, the agency shall

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operate an Electronic Medical Records System Adoption Loan

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Program for the purpose of providing a one-time, no-interest loan

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to eligible physicians licensed under chapter 458 or chapter 459,

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to an eligible business entity whose shareholders are licensed

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under chapter 458 or chapter 459, or to an eligible faculty

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practice plan of a state university for the initial costs of

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implementing an electronic medical records system.

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(b) In order to be eligible for a loan under this

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subsection, each physician must demonstrate that he or she has

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practiced continuously within the state for the previous 3 years

233

or that the faculty practice plan has been established.

234

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has or a business entity whose physician shareholder has:

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1. Been found guilty of violating s. 456.072(1) or been

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disciplined under the applicable licensing chapter in the

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previous 5 years.

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2. Been found guilty of or entered a plea of guilty or nolo

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contendere to a violation of s. 409.920 or s. 409.9201.

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3. Been sanctioned pursuant to s. 409.913 for fraud or

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abuse.

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(d) A loan may be provided to an eligible physician,

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business entity, or faculty practice plan in a lump-sum amount to

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pay for the costs of purchasing hardware and software,

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subscription services, professional consultation, and staff

247

training. The agency shall provide guidance to loan recipients by

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providing, at a minimum, a list of electronic medical record

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systems recognized or certified by national standards-setting

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entities as capable of being used to communicate with a health

251

information exchange.

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(e) The agency shall distribute a minimum of 25 percent of

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funds appropriated to this program to physicians or business

254

entities operating within a rural county as defined in s.

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288.106(1)(r).

256

(f) The agency shall, by rule, develop standard terms and

257

conditions for use in this program. At a minimum, these terms and

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conditions shall require:

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1. Loan repayment by the physician, business entity, or

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faculty practice plan within a reasonable period of time, which

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may not be longer than 72 months after the funding of the loan.

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2. Equal periodic payments that commence within 3 months

263

after the funding of the loan.

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3. The eligible physician, business entity, or faculty

265

practice plan to execute a promissory note and a security

266

agreement in favor of the state. The security agreement shall be

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a purchase-money security interest pledging as collateral for the

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loan the specific hardware and software purchased with the loan

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proceeds. The agency shall prepare and record a financing

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statement under chapter 679. The physician or business entity

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shall pay the cost of recording the financing statement. The

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security agreement shall further require that the physician or

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business entity pay all collection costs, including attorney's

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fees.

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(g) The agency shall require the physician or business

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entity to provide additional security under one of the following

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subparagraphs:

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1. An irrevocable letter of credit, as defined in chapter

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675, in an amount equal to the amount of the loan.

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2. An escrow account consisting of cash or assets eligible

281

for deposit in accordance with s. 625.52 in an amount equal to

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the amount of the loan. If the escrow agent is responsible for

283

making the periodic payments on the loan, the required escrow

284

balance may be diminished as payments are made.

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3. A pledge of the accounts receivables of the physician or

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business entity. This pledge shall be reflected on the financing

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statement.

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(h) All payments received from or on behalf of a physician

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or business entity under this program shall be deposited into the

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agency's Administrative Trust Fund to be used to fund new loans.

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(i) If a physician, business entity, or university whose

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faculty practice plan has received a loan under this section

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ceases to provide care or services to patients, or if the

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physician, business entity, or faculty practice plan defaults in

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any payment and the default continues for 30 days, the entire

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loan balance shall be immediately due and payable and shall bear

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interest from that point forward at the rate of 18 percent

298

annually. Upon default, the agency may offset any moneys owed to

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the physician, business entity, or faculty practice plan from the

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state and apply the offset against the outstanding balance.

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(j) If a physician defaults in any payment and if the

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default continues for 30 days, the default constitutes grounds

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for disciplinary action under chapter 458 or chapter 459 and s.

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456.072(1)(k).

305

(6) FLORIDA HEALTH INFORMATION EXCHANGE ADVISORY COUNCIL.--

306

(a) The Florida Health Information Exchange Advisory

307

Council is created as an adjunct to the agency. The council is

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subject to the requirements of s. 20.052, except that only state

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officers and employees shall be reimbursed for per diem and

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travel expenses pursuant to s. 112.061.

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(b) The purpose of the council is to:

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1. Promote participation in regional and statewide health

313

information exchanges and adoption of health information

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technology to support the infrastructure capacity for regional

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and statewide health information exchanges.

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2. Conduct outreach and convene forums to educate

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stakeholders regarding the benefits of using a health information

318

exchange.

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3. Provide guidance to stakeholders regarding the effective

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use of health information exchanges and standards for protecting

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the privacy and security of electronic medical records.

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1. The Secretary of Health Care Administration, or his or

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her designee.

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2. The State Surgeon General, or his or her designee.

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3. Two members appointed by and serving at the pleasure of

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the Governor, of which:

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a. One member must be from the health insurance industry.

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b. One member must be a consumer who is a resident of the

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state.

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4. Four members appointed by and serving at the pleasure of

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the President of the Senate, of which:

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a. One member must be from a hospital using an electronic

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medical records system.

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b. One member must be a physician using an electronic

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medical records system in his or her practice.

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c. One member must be a representative of an operating

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health information organization in the state.

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d. One member must be from a federally qualified health

340

center or other rural health organization utilizing an electronic

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medical records system.

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5. Four members appointed by and serving at the pleasure of

343

the Speaker of the House of Representatives, of which:

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a. One member must be from a hospital using an electronic

345

medical records system.

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b. One member must be a physician using an electronic

347

medical records system in his or her practice.

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c. One member must be a representative of an operating

349

health information organization in the state.

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d. One member must be from a federally qualified health

351

center or other rural health organization utilizing an electronic

352

medical records system.

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(d) A member who is a representative of an operating health

354

information organization in the state must recuse himself or

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herself during discussion, evaluation, or recommendation of a

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grant application.

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(e) Each member of the council subject to appointment shall

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be appointed to a term of 4 years following the date of

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appointment. A vacancy shall be filled by appointment for the

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remainder of the term. Appointments shall be made within 45 days

361

after the effective date of this section.

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(f) The council may meet at the call of the chair or at the

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request of a majority of its membership, but the council must

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meet at least quarterly. Meetings of the council may be held via

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teleconference or other electronic means.

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(g) Members shall elect a chair and vice chair annually.

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(h) A majority of the members constitutes a quorum and the

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affirmative vote of a majority of a quorum is necessary to take

369

action.

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(i) The council's duties and responsibilities include, but

371

are not limited to, developing recommendations to:

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1. Establish standards for all state-funded health

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information exchange efforts. Such standards shall include, but

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are not limited to, policies and procedures to protect the

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privacy and security of electronic medical records.

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2. Remove barriers, including, but not limited to,

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technological, regulatory, and financial barriers, which limit

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participation by health care providers, health care facilities,

379

and health insurers in a health information exchange.

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3. Remove barriers that prevent consumers from having

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access to their electronic medical records.

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4. Provide incentives to promote participation by health

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care providers, health care facilities, and health insurers in

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health information exchanges.

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5. Identify health care data held by state agencies and

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remove barriers to making that data available to authorized

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recipients through health information exchanges in a private and

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secure manner.

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6. Increase state agency participation in health

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information exchanges.

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7. Enter into partnerships with other state, regional, and

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federal entities to promote and coordinate health information

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exchange efforts.

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8. Create a long-term plan for an interoperable statewide

395

network of health information organizations.

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9. Consult with experts regarding the use of health

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information in medical research to ensure that all

398

recommendations take into account the legitimate uses of health

399

care information for biomedical research, drug development,

400

clinical trials, post-approval surveillance, and public health

401

and public agency reporting requirements.

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The council shall establish ad hoc issue-oriented technical

404

workgroups on an as-needed basis to make recommendations to the

405

council.

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(j) The Florida Center for Health Information and Policy

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Analysis within the agency shall provide, within existing

408

resources, staff support to enable the council to carry out its

409

responsibilities under this section.

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(k) Beginning July 1, 2009, the council shall annually

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provide a report to the Governor, the President of the Senate,

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the Speaker of the House of Representatives, and the chairs of

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the appropriate substantive committees of the Senate and the

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House of Representatives which includes, but is not limited to,

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the recommendations regarding the council's duties and

416

responsibilities. In addition, by July 1, 2010, the council shall

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recommend a long-term plan to create an interoperable statewide

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network of health information organizations to the Governor, the

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President of the Senate, the Speaker of the House of

420

Representatives, and the chairs of the appropriate substantive

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committees of the Senate and the House of Representatives.

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(l) This section is repealed and the council shall stand

423

abolished July 1, 2012, unless reviewed and saved from repeal

424

through reenactment by the Legislature.

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(7) AGENCY FOR HEALTH CARE ADMINISTRATION; DUTIES.--

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(a) The agency shall develop and maintain on its Internet

427

website the following information:

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1. Federal and private-sector health information exchange

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funding programs, including analyses of successful local and

430

state recipients of the programs, as well as unsuccessful local

431

and state applicants of the programs.

432

2. A clearinghouse of state and national legislative,

433

regulatory, and public awareness activities related to health

434

information exchanges.

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(b) The agency shall develop and implement a plan that

436

promotes, at a minimum, participation in regional and statewide

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health information exchanges and the adoption of electronic

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medical record systems by physicians through the Electronic

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Medical Records System Adoption Loan Program, in consultation

440

with the Florida Health Information Exchange Advisory Council,

441

organizations representing allopathic and osteopathic practicing

442

physicians, the Board of Medicine, and the Board of Osteopathic

443

Medicine.

444

(8) PROGRAM EVALUATION; REPORT.--The Office of Program

445

Policy Analysis and Government Accountability shall complete an

446

independent evaluation of the grants program administered by the

447

agency. The evaluation must include, at a minimum, assessments of

448

the grant evaluation and distribution process; the way in which

449

grant dollars are spent; the level of participation by entities

450

within each grantee's project; the extent of clinical data

451

exchange among entities within each grantee's project; the

452

sources of funding for each grantee; and the feasibility of each

453

grantee achieving long-term sustainability without state grant

454

funding. The evaluation must assess the level at which the

455

current grants program is advancing the development of a

456

statewide health information exchange and recommend other

457

programs that may accomplish the same goal. The report shall be

458

submitted to the Governor, the President of the Senate, the

459

Speaker of the House of Representatives, and the chairs of the

460

relevant committees in the Senate and the House of

461

Representatives no later than July 1, 2009.

462

Section 4. Subsection (5) of section 408.062, Florida

463

Statutes, is amended to read:

464

408.062 Research, analyses, studies, and reports.--

465

(5) The agency shall develop and implement a strategy for

466

the adoption and use of electronic health records, including the

467

development of an electronic health information network for the

468

sharing of electronic health records among health care

469

facilities, health care providers, and health insurers. The

470

agency may develop rules to facilitate the functionality and

471

protect the confidentiality of electronic health records. The

472

agency shall report to the Governor, the Speaker of the House of

473

Representatives, and the President of the Senate on legislative

474

recommendations to protect the confidentiality of electronic

475

health records.

476

Section 5. Subsection (2) of section 483.181, Florida

477

Statutes, is amended to read:

478

483.181 Acceptance, collection, identification, and

479

examination of specimens.--

480

(2) The results of a test must be reported directly to the

481

licensed practitioner or other authorized person who requested it

482

and appropriate disclosure may be made by the clinical laboratory

483

without a patient's consent to other health care practitioners

484

and providers involved in the care or treatment of the patient

485

for use in connection with the treatment of the patient. The

486

report must include the name and address of the clinical

487

laboratory in which the test was actually performed, unless the

488

test was performed in a hospital laboratory and the report

489

becomes an integral part of the hospital record.

490

Section 6. This act shall take effect upon becoming a law.

491

492

================ T I T L E A M E N D M E N T ================

493

And the title is amended as follows:

494

Delete everything before the enacting clause

495

and insert:

496

A bill to be entitled

497

An act relating to electronic health records; amending s.

498

395.3025, F.S.; expanding access to a patient's medical

499

records to facilitate electronic exchange of data between

500

certain health care facilities, practitioners, and

501

providers and attending physicians; revising provisions

502

relating to the disclosure of patient records to conform

503

to changes made by the act; amending s. 408.05, F.S.;

504

removing responsibility of the Agency for Health Care

505

Administration for monitoring certain grants; creating s.

506

408.051, F.S.; creating the "Florida eHealth Initiative

507

Act"; providing legislative intent; providing definitions;

508

requiring the agency to award and monitor grants to

509

certain health information organizations; providing

510

rulemaking authority regarding establishment of

511

eligibility criteria; establishing the Electronic Medical

512

Records System Adoption Loan Program; providing

513

eligibility criteria; providing rulemaking authority

514

regarding terms and conditions for the granting of loans;

515

creating the Florida Health Information Exchange Advisory

516

Council; providing for purpose, membership, terms of

517

office, and duties of the council; requiring the Florida

518

Center for Health Information and Policy Analysis to

519

provide staff support; requiring reports to the Governor

520

and Legislature; providing for future repeal of s.

521

408.051, F.S., and abolition of the council; providing

522

duties of the agency with regard to availability of

523

specified information on the agency's Internet website;

524

requiring the agency to develop and implement a plan to

525

promote participation in regional and statewide health

526

information exchanges; requiring the Office of Program

527

Policy Analysis and Government Accountability to complete

528

an independent evaluation of the grants program

529

administered by the agency and submit the report to the

530

Governor and Legislature by a certain date; amending s.

531

408.062, F.S.; removing responsibility of the agency for

532

developing an electronic health information network;

533

amending s. 483.181, F.S.; expanding access to laboratory

534

reports to facilitate electronic exchange of data between

535

certain health care practitioners and providers; providing

536

an effective date.

4/1/2008 10:46:00 AM 6-06120B-08

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