1

A bill to be entitled

2

An act relating to electronic health records; amending s.

3

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

4

records to facilitate electronic exchange of data between

5

certain health care facilities, practitioners, and

6

providers and attending physicians; revising provisions

7

relating to the disclosure of patient records to conform

8

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

9

removing responsibility of the Agency for Health Care

10

Administration for monitoring certain grants; creating s.

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

12

Act"; providing legislative intent; providing definitions;

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requiring the agency to award and monitor grants to

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certain health information organizations; providing

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rulemaking authority regarding establishment of

16

eligibility criteria; establishing the Electronic Medical

17

Records System Adoption Loan Program; providing

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eligibility criteria; providing rulemaking authority

19

regarding terms and conditions for the granting of loans;

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creating the Florida Health Information Exchange Advisory

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Council; providing for purpose, membership, terms of

22

office, and duties of the council; requiring the Florida

23

Center for Health Information and Policy Analysis to

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provide staff support; requiring reports to the Governor

25

and Legislature; providing for future repeal of s.

26

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

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duties of the agency with regard to availability of

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specified information on the agency's Internet website;

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requiring the agency to develop and implement a plan to

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promote participation in regional and statewide health

31

information exchanges; requiring the Office of Program

32

Policy Analysis and Government Accountability to complete

33

an independent evaluation of the grants program

34

administered by the agency and submit the report to the

35

Governor and Legislature by a certain date; amending s.

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

37

developing an electronic health information network;

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

39

reports to facilitate electronic exchange of data between

40

certain health care practitioners and providers; providing

41

an effective date.

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43

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

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

46

Statutes, is amended to read:

47

     395.3025  Patient and personnel records; copies;

48

examination.--

49

     (4)  Patient records are confidential and must not be

50

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

51

representative person to whom they pertain, but appropriate

52

disclosure may be made without such consent to:

53

     (a) Licensed facility personnel, and attending physicians,

54

or other health care practitioners and providers currently

55

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

56

connection with the treatment of the patient.

57

     (b)  Licensed facility personnel only for administrative

58

purposes or risk management and quality assurance functions.

59

     (c)  The agency, for purposes of health care cost

60

containment.

61

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

62

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

63

of competent jurisdiction and proper notice by the party seeking

64

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

65

     (e) The department agency upon subpoena issued pursuant to

66

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

67

for the purpose of the department agency and the appropriate

68

professional board in its investigation, prosecution, and appeal

69

of disciplinary proceedings. If the department agency requests

70

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

71

actual copying costs, including reasonable staff time. The

72

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

73

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

74

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

75

record of investigation for and prosecution in disciplinary

76

proceedings made available to the public by the department agency

77

or the appropriate regulatory board. However, the department

78

agency must make available, upon written request by a

79

practitioner against whom probable cause has been found, any such

80

records that form the basis of the determination of probable

81

cause.

82

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

83

of establishing and maintaining a trauma registry and for the

84

purpose of ensuring that hospitals and trauma centers are in

85

compliance with the standards and rules established under ss.

86

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

87

for the purpose of monitoring patient outcome at hospitals and

88

trauma centers that provide trauma care services.

89

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

90

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

91

neglect, or exploitation of children or vulnerable adults.

92

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

93

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

94

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

95

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

96

investigation involving the patient as authorized under part II

97

of chapter 400, upon presentation of identification as a council

98

member by the person making the request. Disclosure under this

99

paragraph shall only be made after a competent patient or the

100

patient's representative has been advised that disclosure may be

101

made and the patient has not objected.

102

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

103

performs quality assurance activities, or a panel or committee

104

assembled to assist a local trauma agency or a regional trauma

105

agency in performing quality assurance activities. Patient

106

records obtained under this paragraph are confidential and exempt

107

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

108

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

109

banks required to conduct death records reviews pursuant to s.

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395.2050.

111

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

112

Legal Affairs pursuant to s. 409.920.

113

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

114

employee, or independent contractor of the department who is

115

auditing for unclaimed property pursuant to chapter 717.

116

     (m)  A regional poison control center for purposes of

117

treating a poison episode under evaluation, case management of

118

poison cases, or compliance with data collection and reporting

119

requirements of s. 395.1027 and the professional organization

120

that certifies poison control centers in accordance with federal

121

law.

122

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

123

Statutes, is amended to read:

124

     408.05  Florida Center for Health Information and Policy

125

Analysis.--

126

     (4)  TECHNICAL ASSISTANCE.--

127

     (a)  The center shall provide technical assistance to

128

persons or organizations engaged in health planning activities in

129

the effective use of statistics collected and compiled by the

130

center. The center shall also provide the following additional

131

technical assistance services:

132

     1.  Establish procedures identifying the circumstances under

133

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

134

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

135

including procedures governing requests, the ordering of

136

requests, timeframes for handling requests, and other procedures

137

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

138

extent possible, the center should provide current data timely in

139

response to requests from public or private agencies.

140

     2.  Provide assistance to data sources and users in the

141

areas of database design, survey design, sampling procedures,

142

statistical interpretation, and data access to promote improved

143

health-care-related data sets.

144

     3.  Identify health care data gaps and provide technical

145

assistance to other public or private organizations for meeting

146

documented health care data needs.

147

     4.  Assist other organizations in developing statistical

148

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

149

     5.  Provide statistical support to state agencies with

150

regard to the use of databases maintained by the center.

151

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

152

information not currently collected by the center or available

153

from other sources by initiating data collection.

154

     7.  Maintain detailed information on data maintained by

155

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

156

advise those who use the center of potential sources of data

157

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

159

published form by initiating special computer runs on data sets

160

available to the center.

161

     9.  Monitor innovations in health information technology,

162

informatics, and the exchange of health information and maintain

163

a repository of technical resources to support the development of

164

a statewide health information exchange network.

165

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

166

to not-for-profit organizations, regional health information

167

organizations, public health departments, or state agencies that

168

submit proposals for planning, implementation, or training

169

projects to advance the development of a health information

170

network. Any grant contract shall be evaluated to ensure the

171

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

174

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

178

read:

179

     408.051 Florida eHealth Initiative Act.--

180

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

181

eHealth Initiative Act."

182

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

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the exchange of electronic medical records will benefit consumers

184

by increasing the quality and efficiency of health care

185

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

186

the state promote and coordinate the establishment of a secure,

187

privacy-protected, and interconnected statewide health

188

information exchange.

189

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

190

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

191

person's medical treatment created by a licensed health care

192

provider and stored in an interoperable and accessible digital

193

format.

194

     (b) "Electronic medical records system" means an

195

application environment composed of at least two of the following

196

systems: a clinical data repository; clinical decision support;

197

controlled medical vocabulary; computerized provider order entry;

198

pharmacy; or clinical documentation. The application must be used

199

by health care practitioners to document, monitor, and manage

200

health care delivery within a health care delivery system and

201

must be capable of interoperability within a health information

202

exchange.

203

     (c) "Health information exchange" means an electronic

204

system used to acquire, process, and transmit electronic medical

205

records that can be shared in real time among authorized health

206

care providers, health care facilities, health insurers, and

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other recipients, as authorized by law, to facilitate the

208

provision of health care services.

209

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

210

has a formal structure and established policies and procedures

211

and that serves as a neutral convener of local stakeholders to

212

enable the secure and reliable exchange of electronic medical

213

records among authorized health care stakeholders within a

214

defined geographic region to facilitate improvements in health

215

care quality, safety, and coordination of care.

216

     (4) MATCHING GRANTS.--

217

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

218

award and monitor matching grants to health information

219

organizations that submit proposals that advance the development

220

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

224

support or services. Grants may be awarded within the following

225

categories: development, operation, and collaboration.

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

227

eligibility criteria for a health information organization to

228

qualify for a grant under this subsection. These criteria shall

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include, at a minimum, documentation of the following:

230

     1. For development grants, the proposed organizational

231

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

232

key participants, a demonstration of available local or private

233

matching funds, a timeline for development of the health

234

information exchange, and proposed goals and metrics.

235

     2. For operation grants, a demonstration of available local

236

or private matching funds and a detailed business plan, which

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shall include a timeline for implementation of the health

238

information exchange, policies and procedures to protect the

239

privacy and security of electronic medical records, and proposed

240

goals and metrics.

241

     3. For collaboration grants, a demonstration of available

242

local or private matching funds, memoranda of understanding

243

between at least two health information organizations for the

244

exchange of electronic medical records, a demonstration of

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consistent utilization of the health information exchange by

246

members within each participating health information

247

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

248

timeline for the implementation of the exchange of electronic

249

medical records between participating health information

250

organizations, policies and procedures to protect the privacy and

251

security of electronic medical records, and proposed goals and

252

metrics.

253

     (c) Beginning July 1, 2008, the agency may not award a

254

health information organization more than 6 aggregate years of

255

funding.

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

257

Florida Health Information Exchange Advisory Council.

258

     (5) ELECTRONIC MEDICAL RECORDS SYSTEM ADOPTION LOAN

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PROGRAM.--

260

     (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

263

to eligible physicians licensed under chapter 458 or chapter 459,

264

to an eligible business entity whose shareholders are licensed

265

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

266

practice plan of a state university for the initial costs of

267

implementing an electronic medical records system.

268

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

269

subsection, each physician must demonstrate that he or she has

270

practiced continuously within the state for the previous 3 years

271

or that the faculty practice plan has been established.

272

     (c) The agency may not provide a loan to a physician who

273

has or a business entity whose physician shareholder has:

274

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

275

disciplined under the applicable licensing chapter in the

276

previous 5 years.

277

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

278

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

279

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

280

abuse.

281

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

282

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

283

pay for the costs of purchasing hardware and software,

284

subscription services, professional consultation, and staff

285

training. The agency shall provide guidance to loan recipients by

286

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

287

systems recognized or certified by national standards-setting

288

entities as capable of being used to communicate with a health

289

information exchange.

290

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

291

funds appropriated to this program to physicians or business

292

entities operating within a rural county as defined in s.

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288.106(1)(r).

294

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

295

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

296

conditions shall require:

297

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

298

faculty practice plan within a reasonable period of time, which

299

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

300

     2. Equal periodic payments that commence within 3 months

301

after the funding of the loan.

302

     3. The eligible physician, business entity, or faculty

303

practice plan to execute a promissory note and a security

304

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

305

a purchase-money security interest pledging as collateral for the

306

loan the specific hardware and software purchased with the loan

307

proceeds. The agency shall prepare and record a financing

308

statement under chapter 679. The physician or business entity

309

shall pay the cost of recording the financing statement. The

310

security agreement shall further require that the physician or

311

business entity pay all collection costs, including attorney's

312

fees.

313

     (g) The agency shall require the physician or business

314

entity to provide additional security under one of the following

315

subparagraphs:

316

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

317

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

318

     2. An escrow account consisting of cash or assets eligible

319

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

320

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

321

making the periodic payments on the loan, the required escrow

322

balance may be diminished as payments are made.

323

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

324

business entity. This pledge shall be reflected on the financing

325

statement.

326

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

327

or business entity under this program shall be deposited into the

328

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

329

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

330

faculty practice plan has received a loan under this section

331

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

332

physician, business entity, or faculty practice plan defaults in

333

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

334

loan balance shall be immediately due and payable and shall bear

335

interest from that point forward at the rate of 18 percent

336

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

337

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

338

state and apply the offset against the outstanding balance.

339

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

340

default continues for 30 days, the default constitutes grounds

341

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

342

456.072(1)(k).

343

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

344

     (a) The Florida Health Information Exchange Advisory

345

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

346

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

347

officers and employees shall be reimbursed for per diem and

348

travel expenses pursuant to s. 112.061.

349

     (b) The purpose of the council is to:

350

     1. Promote participation in regional and statewide health

351

information exchanges and adoption of health information

352

technology to support the infrastructure capacity for regional

353

and statewide health information exchanges.

354

     2. Conduct outreach and convene forums to educate

355

stakeholders regarding the benefits of using a health information

356

exchange.

357

     3. Provide guidance to stakeholders regarding the effective

358

use of health information exchanges and standards for protecting

359

the privacy and security of electronic medical records.

360

     (c) The council shall consist of the following members:

361

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

362

her designee.

363

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

364

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

365

the Governor, of which:

366

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

367

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

368

state.

369

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

370

the President of the Senate, of which:

371

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

372

medical records system.

373

     b. One member must be a physician using an electronic

374

medical records system in his or her practice.

375

     c. One member must be a representative of an operating

376

health information organization in the state.

377

     d. One member must be from a federally qualified health

378

center or other rural health organization utilizing an electronic

379

medical records system.

380

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

381

the Speaker of the House of Representatives, of which:

382

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

383

medical records system.

384

     b. One member must be a physician using an electronic

385

medical records system in his or her practice.

386

     c. One member must be a representative of an operating

387

health information organization in the state.

388

     d. One member must be from a federally qualified health

389

center or other rural health organization utilizing an electronic

390

medical records system.

391

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

392

information organization in the state must recuse himself or

393

herself during discussion, evaluation, or recommendation of a

394

grant application.

395

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

396

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

397

appointment. A vacancy shall be filled by appointment for the

398

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

399

after the effective date of this section.

400

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

401

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

402

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

403

teleconference or other electronic means.

404

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

405

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

406

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

407

action.

408

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

409

are not limited to, developing recommendations to:

410

     1. Establish standards for all state-funded health

411

information exchange efforts. Such standards shall include, but

412

are not limited to, policies and procedures to protect the

413

privacy and security of electronic medical records.

414

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

415

technological, regulatory, and financial barriers, which limit

416

participation by health care providers, health care facilities,

417

and health insurers in a health information exchange.

418

     3. Remove barriers that prevent consumers from having

419

access to their electronic medical records.

420

     4. Provide incentives to promote participation by health

421

care providers, health care facilities, and health insurers in

422

health information exchanges.

423

     5. Identify health care data held by state agencies and

424

remove barriers to making that data available to authorized

425

recipients through health information exchanges in a private and

426

secure manner.

427

     6. Increase state agency participation in health

428

information exchanges.

429

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

430

federal entities to promote and coordinate health information

431

exchange efforts.

432

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

433

network of health information organizations.

434

     9. Consult with experts regarding the use of health

435

information in medical research to ensure that all

436

recommendations take into account the legitimate uses of health

437

care information for biomedical research, drug development,

438

clinical trials, post-approval surveillance, and public health

439

and public agency reporting requirements.

440

441

The council shall establish ad hoc issue-oriented technical

442

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

443

council.

444

     (j) The Florida Center for Health Information and Policy

445

Analysis within the agency shall provide, within existing

446

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

447

responsibilities under this section.

448

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

449

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

450

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

451

the appropriate substantive committees of the Senate and the

452

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

453

the recommendations regarding the council's duties and

454

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

455

recommend a long-term plan to create an interoperable statewide

456

network of health information organizations to the Governor, the

457

President of the Senate, the Speaker of the House of

458

Representatives, and the chairs of the appropriate substantive

459

committees of the Senate and the House of Representatives.

460

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

461

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

462

through reenactment by the Legislature.

463

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

464

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

465

website the following information:

466

     1. Federal and private-sector health information exchange

467

funding programs, including analyses of successful local and

468

state recipients of the programs, as well as unsuccessful local

469

and state applicants of the programs.

470

     2. A clearinghouse of state and national legislative,

471

regulatory, and public awareness activities related to health

472

information exchanges.

473

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

474

promotes, at a minimum, participation in regional and statewide

475

health information exchanges and the adoption of electronic

476

medical record systems by physicians through the Electronic

477

Medical Records System Adoption Loan Program, in consultation

478

with the Florida Health Information Exchange Advisory Council,

479

organizations representing allopathic and osteopathic practicing

480

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

481

Medicine.

482

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

483

Policy Analysis and Government Accountability shall complete an

484

independent evaluation of the grants program administered by the

485

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

486

the grant evaluation and distribution process; the way in which

487

grant dollars are spent; the level of participation by entities

488

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

489

exchange among entities within each grantee's project; the

490

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

491

grantee achieving long-term sustainability without state grant

492

funding. The evaluation must assess the level at which the

493

current grants program is advancing the development of a

494

statewide health information exchange and recommend other

495

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

496

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

497

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

498

relevant committees in the Senate and the House of

499

Representatives no later than July 1, 2009.

500

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

501

Statutes, is amended to read:

502

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

503

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

504

the adoption and use of electronic health records, including the

505

development of an electronic health information network for the

506

sharing of electronic health records among health care

507

facilities, health care providers, and health insurers. The

508

agency may develop rules to facilitate the functionality and

509

protect the confidentiality of electronic health records. The

510

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

511

Representatives, and the President of the Senate on legislative

512

recommendations to protect the confidentiality of electronic

513

health records.

514

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

515

Statutes, is amended to read:

516

     483.181  Acceptance, collection, identification, and

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examination of specimens.--

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

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licensed practitioner or other authorized person who requested it

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and appropriate disclosure may be made by the clinical laboratory

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without a patient's consent to other health care practitioners

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and providers involved in the care or treatment of the patient

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

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report must include the name and address of the clinical

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laboratory in which the test was actually performed, unless the

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test was performed in a hospital laboratory and the report

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becomes an integral part of the hospital record.

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