CS/CS/HB 637

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 terminology
7	regarding disclosure of patient records to conform to
8	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 and health
11	care data; creating s. 408.051, F.S.; creating the
12	"Florida eHealth Initiative Act"; providing legislative
13	intent; providing definitions; requiring the agency to
14	award and monitor grants to certain health information
15	organizations; providing rulemaking authority regarding
16	establishment of eligibility criteria; authorizing the
17	agency to operate an Electronic Medical Records System
18	Adoption Loan Program, subject to a specific
19	appropriation; providing eligibility criteria; providing
20	rulemaking authority regarding terms and conditions for
21	the granting of loans; creating the Florida Health
22	Information Exchange Advisory Council; providing for
23	purpose, membership, terms of office, and duties of the
24	council; requiring the council to consult with certain
25	experts regarding the use of health information in medical
26	research to conform with provisions in the Health
27	Insurance Portability and Accountability Act; requiring
28	the Florida Center for Health Information and Policy
29	Analysis to provide staff support; requiring reports to
30	the Governor and Legislature; providing for future
31	abolition of the council; providing duties of the agency
32	with regard to availability of specified information on
33	the agency's Internet website; requiring the agency to
34	develop and implement a plan to promote participation in
35	regional and statewide health information exchanges;
36	requiring the Office of Program Policy Analysis and
37	Government Accountability to complete an independent
38	evaluation of the grants program administered by the
39	agency and submit the report to the Governor and
40	Legislature; amending s. 408.062, F.S.; removing
41	responsibility of the agency for developing an electronic
42	health information network; amending s. 483.181, F.S.;
43	expanding access to laboratory reports to facilitate
44	exchange of data between certain health care practitioners
45	and providers; providing an effective date.
46
47	Be It Enacted by the Legislature of the State of Florida:
48
49	Section 1.  Subsection (4) of section 395.3025, Florida
50	Statutes, is amended to read:
51	395.3025  Patient and personnel records; copies;
52	examination.--
53	(4)  Patient records are confidential and must not be
54	disclosed without the consent of the patient or his or her legal
55	representative person to whom they pertain, but appropriate
56	disclosure may be made without such consent to:
57	(a)  Licensed facility personnel, and attending physicians,
58	or other health care practitioners and providers currently
59	involved in the care or treatment of the patient for use only in
60	connection with the treatment of the patient.
61	(b)  Licensed facility personnel only for administrative
62	purposes or risk management and quality assurance functions.
63	(c)  The agency, for purposes of health care cost
64	containment.
65	(d)  In any civil or criminal action, unless otherwise
66	prohibited by law, upon the issuance of a subpoena from a court
67	of competent jurisdiction and proper notice by the party seeking
68	such records to the patient or his or her legal representative.
69	(e)  The department agency upon subpoena issued pursuant to
70	s. 456.071, but the records obtained thereby must be used solely
71	for the purpose of the department agency and the appropriate
72	professional board in its investigation, prosecution, and appeal
73	of disciplinary proceedings. If the department agency requests
74	copies of the records, the facility shall charge no more than
75	its actual copying costs, including reasonable staff time. The
76	records must be sealed and must not be available to the public
77	pursuant to s. 119.07(1) or any other statute providing access
78	to records, nor may they be available to the public as part of
79	the record of investigation for and prosecution in disciplinary
80	proceedings made available to the public by the department
81	agency or the appropriate regulatory board. However, the
82	department agency must make available, upon written request by a
83	practitioner against whom probable cause has been found, any
84	such records that form the basis of the determination of
85	probable cause.
86	(f)  The department of Health or its agent, for the purpose
87	of establishing and maintaining a trauma registry and for the
88	purpose of ensuring that hospitals and trauma centers are in
89	compliance with the standards and rules established under ss.
90	395.401, 395.4015, 395.4025, 395.404, 395.4045, and 395.405, and
91	for the purpose of monitoring patient outcome at hospitals and
92	trauma centers that provide trauma care services.
93	(g)  The Department of Children and Family Services or its
94	agent, for the purpose of investigations of cases of abuse,
95	neglect, or exploitation of children or vulnerable adults.
96	(h)  The State Long-Term Care Ombudsman Council and the
97	local long-term care ombudsman councils, with respect to the
98	records of a patient who has been admitted from a nursing home
99	or long-term care facility, when the councils are conducting an
100	investigation involving the patient as authorized under part II
101	of chapter 400, upon presentation of identification as a council
102	member by the person making the request. Disclosure under this
103	paragraph shall only be made after a competent patient or the
104	patient's representative has been advised that disclosure may be
105	made and the patient has not objected.
106	(i)  A local trauma agency or a regional trauma agency that
107	performs quality assurance activities, or a panel or committee
108	assembled to assist a local trauma agency or a regional trauma
109	agency in performing quality assurance activities. Patient
110	records obtained under this paragraph are confidential and
111	exempt from s. 119.07(1) and s. 24(a), Art. I of the State
112	Constitution.
113	(j)  Organ procurement organizations, tissue banks, and eye
114	banks required to conduct death records reviews pursuant to s.
115	395.2050.
116	(k)  The Medicaid Fraud Control Unit in the Department of
117	Legal Affairs pursuant to s. 409.920.
118	(l)  The Department of Financial Services, or an agent,
119	employee, or independent contractor of the department who is
120	auditing for unclaimed property pursuant to chapter 717.
121	(m)  A regional poison control center for purposes of
122	treating a poison episode under evaluation, case management of
123	poison cases, or compliance with data collection and reporting
124	requirements of s. 395.1027 and the professional organization
125	that certifies poison control centers in accordance with federal
126	law.
127	Section 2.  Subsection (4) of section 408.05, Florida
128	Statutes, is amended to read:
129	408.05  Florida Center for Health Information and Policy
130	Analysis.--
131	(4)  TECHNICAL ASSISTANCE.--
132	(a)  The center shall provide technical assistance to
133	persons or organizations engaged in health planning activities
134	in the effective use of statistics collected and compiled by the
135	center. The center shall also provide the following additional
136	technical assistance services:
137	1.  Establish procedures identifying the circumstances
138	under which, the places at which, the persons from whom, and the
139	methods by which a person may secure data from the center,
140	including procedures governing requests, the ordering of
141	requests, timeframes for handling requests, and other procedures
142	necessary to facilitate the use of the center's data. To the
143	extent possible, the center should provide current data timely
144	in response to requests from public or private agencies.
145	2.  Provide assistance to data sources and users in the
146	areas of database design, survey design, sampling procedures,
147	statistical interpretation, and data access to promote improved
148	health-care-related data sets.
149	3.  Identify health care data gaps and provide technical
150	assistance to other public or private organizations for meeting
151	documented health care data needs.
152	4.  Assist other organizations in developing statistical
153	abstracts of their data sets that could be used by the center.
154	5.  Provide statistical support to state agencies with
155	regard to the use of databases maintained by the center.
156	6.  To the extent possible, respond to multiple requests
157	for information not currently collected by the center or
158	available from other sources by initiating data collection.
159	7.  Maintain detailed information on data maintained by
160	other local, state, federal, and private agencies in order to
161	advise those who use the center of potential sources of data
162	which are requested but which are not available from the center.
163	8.  Respond to requests for data which are not available in
164	published form by initiating special computer runs on data sets
165	available to the center.
166	9.  Monitor innovations in health information technology,
167	informatics, and the exchange of health information and maintain
168	a repository of technical resources to support the development
169	of a statewide health information exchange network.
170	(b)  The agency shall administer, manage, and monitor
171	grants to not-for-profit organizations, regional health
172	information organizations, public health departments, or state
173	agencies that submit proposals for planning, implementation, or
174	training projects to advance the development of a health
175	information network. Any grant contract shall be evaluated to
176	ensure the effective outcome of the health information project.
177	(b)(c)  The agency shall initiate, oversee, manage, and
178	evaluate the integration of health care data from each state
179	agency that collects, stores, and reports on health care issues
180	and make that data available to any health care practitioner
181	through a statewide state health information exchange network.
182	Section 3.  Section 408.051, Florida Statutes, is created
183	to read:
184	408.051  Florida eHealth Initiative Act.--
185	(1)  SHORT TITLE.--This section may be cited as the
186	"Florida eHealth Initiative Act."
187	(2)  LEGISLATIVE INTENT.--The Legislature recognizes that
188	the exchange of electronic medical records will benefit
189	consumers by increasing the quality and efficiency of health
190	care throughout the state. It is the intent of the Legislature
191	that the state promote and coordinate the establishment of a
192	secure, privacy-protected, and interconnected statewide health
193	information exchange.
194	(3)  DEFINITIONS.--As used in this section, the term:
195	(a)  "Electronic medical record" means a record of a
196	person's medical treatment created by a licensed health care
197	provider and stored in an interoperable and accessible digital
198	format.
199	(b)  "Electronic medical records system" means an
200	application environment composed of at least two of the
201	following systems: a clinical data repository; clinical decision
202	support; controlled medical vocabulary; computerized provider
203	order entry; pharmacy; or clinical documentation. The
204	application must be used by health care practitioners to
205	document, monitor, and manage health care delivery within a
206	health care delivery system and must be capable of
207	interoperability within a health information exchange.
208	(c)  "Health information exchange" means an electronic
209	system used to acquire, process, and transmit electronic medical
210	records that can be shared in real time among authorized health
211	care providers, health care facilities, health insurers, and
212	other recipients, as authorized by law, to facilitate the
213	provision of health care services.
214	(d)  "Health information organization" means an entity with
215	a formal structure and established policies and procedures that
216	serves as a neutral convener of local stakeholders to enable the
217	secure and reliable exchange of electronic medical records among
218	authorized health care stakeholders within a defined geographic
219	region to facilitate improvements in health care quality,
220	safety, and coordination of care.
221	(4)  MATCHING GRANTS.--
222	(a)  Subject to a specific appropriation, the agency shall
223	award and monitor matching grants to health information
224	organizations that submit proposals that advance the development
225	of a statewide health information exchange. Funds awarded under
226	this subsection shall be awarded on the basis of matching each
227	$1 of state funds with $1 of local or private funds. Local or
228	private funds may be provided in the form of cash or in-kind
229	support or services. Grants may be awarded within the following
230	categories: development, operation, and collaboration.
231	(b)  The agency shall, by rule, establish specific
232	eligibility criteria for a health information organization to
233	qualify for a grant under this subsection. These criteria shall
234	include, at a minimum, documentation of the following:
235	1.  For development grants, the proposed organizational
236	structure, the level of community support, including a list of
237	key participants, a demonstration of available local or private
238	matching funds, a timeline for development of the health
239	information exchange, and proposed goals and metrics.
240	2.  For operation grants, a demonstration of available
241	local or private matching funds and a detailed business plan,
242	which shall include a timeline for implementation of the health
243	information exchange, policies and procedures to protect the
244	privacy and security of electronic medical records, and proposed
245	goals and metrics.
246	3.  For collaboration grants, a demonstration of available
247	local or private matching funds, memoranda of understanding
248	between at least two health information organizations for the
249	exchange of electronic medical records, a demonstration of
250	consistent utilization of the health information exchange by
251	members within each participating health information
252	organization, and a detailed business plan, which shall include
253	a timeline for the implementation of the exchange of electronic
254	medical records between participating health information
255	organizations, policies and procedures to protect the privacy
256	and security of electronic medical records, and proposed goals
257	and metrics.
258	(c)  Beginning July 1, 2008, the agency shall not award a
259	health information organization more than 6 aggregate years of
260	funding.
261	(d)  The agency shall award grants in consultation with the
262	Florida Health Information Exchange Advisory Council.
263	(5)  ELECTRONIC MEDICAL RECORDS SYSTEM ADOPTION LOAN
264	PROGRAM.--
265	(a)  Subject to a specific appropriation, the agency shall
266	operate an Electronic Medical Records System Adoption Loan
267	Program for the purpose of providing a one-time, no-interest
268	loan to eligible physicians licensed under chapter 458 or
269	chapter 459 or to an eligible business entity whose shareholders
270	are licensed under chapter 458 or chapter 459 for the initial
271	costs of implementing an electronic medical records system.
272	(b)  In order to be eligible for a loan under this
273	subsection, each physician must demonstrate that he or she has
274	practiced continuously within the state for the previous 3
275	years.
276	(c)  The agency shall not provide a loan to a physician who
277	has or a business entity whose physician has:
278	1.  Been found guilty of violating s. 456.072(1) or been
279	disciplined under the applicable licensing chapter in the
280	previous 5 years.
281	2.  Been found guilty of or entered a plea of guilty or
282	nolo contendere to a violation of s. 409.920 or s. 409.9201.
283	3.  Been sanctioned pursuant to s. 409.913 for fraud or
284	abuse.
285	(d)  A loan may be provided to an eligible physician or
286	business entity in a lump-sum amount to pay for the costs of
287	purchasing hardware and software, subscription services,
288	professional consultation, and staff training. The agency shall
289	provide guidance to loan recipients by providing, at a minimum,
290	a list of electronic medical records systems recognized or
291	certified by national standards-setting entities as capable of
292	being used to communicate with a health information exchange.
293	(e)  The agency shall distribute a minimum of 25 percent of
294	funds appropriated to this program to physicians or business
295	entities operating within a rural county as defined in s.
296	288.106(1)(r).
297	(f)  The agency shall, by rule, develop standard terms and
298	conditions for use in this program. At a minimum, these terms
299	and conditions shall require:
300	1.  Loan repayment by the physician or business entity
301	within a reasonable period of time, which may not be longer than
302	72 months after the funding of the loan.
303	2.  Equal periodic payments that commence within 3 months
304	after the funding of the loan.
305	3.  The eligible physician or business entity to execute a
306	promissory note and a security agreement in favor of the state.
307	The security agreement shall be a purchase-money security
308	interest pledging as collateral for the loan the specific
309	hardware and software purchased with the loan proceeds. The
310	agency shall prepare and record a financing statement under
311	chapter 679. The physician or business entity shall be
312	responsible for paying the cost of recording the financing
313	statement. The security agreement shall further require that the
314	physician or business entity pay all collection costs, including
315	attorney's fees.
316	(g)  The agency shall further require the physician or
317	business entity to provide additional security under one of the
318	following subparagraphs:
319	1.  An irrevocable letter of credit, as defined in chapter
320	675, in an amount equal to the amount of the loan.
321	2.  An escrow account consisting of cash or assets eligible
322	for deposit in accordance with s. 625.52 in an amount equal to
323	the amount of the loan. If the escrow agent is responsible for
324	making the periodic payments on the loan, the required escrow
325	balance may be diminished as payments are made.
326	3.  A pledge of the accounts receivables of the physician
327	or business entity. This pledge shall be reflected on the
328	financing statement.
329	(h)  All payments received from or on behalf of a physician
330	or business entity under this program shall be deposited into
331	the agency's Administrative Trust Fund to be used to fund new
332	loans.
333	(i)  If a physician or business entity that has received a
334	loan under this section ceases to provide care or services to
335	patients, or if the physician or business entity defaults in any
336	payment and the default continues for 30 days, the entire loan
337	balance shall be immediately due and payable and shall bear
338	interest from that point forward at the rate of 18 percent
339	annually. Upon default, the agency may offset any moneys owed to
340	the physician or business entity from the state and apply the
341	offset against the outstanding balance.
342	(j)  If a physician defaults in any payment and if the
343	default continues for 30 days, the default shall constitute
344	grounds for disciplinary action under chapter 458 or chapter 459
345	and s. 456.072(1)(k).
346	(6)  FLORIDA HEALTH INFORMATION EXCHANGE ADVISORY
347	COUNCIL.--
348	(a)  The Florida Health Information Exchange Advisory
349	Council is created as an adjunct to the agency. The council is
350	subject to the requirements of s. 20.052, except that only state
351	officers and employees shall be reimbursed for per diem and
352	travel expenses pursuant to s. 112.061.
353	(b)  The purpose of the council is to:
354	1.  Promote participation in regional and statewide health
355	information exchanges and adoption of health information
356	technology to support the infrastructure capacity for regional
357	and statewide health information exchanges.
358	2.  Conduct outreach and convene forums to educate
359	stakeholders regarding the benefits of utilizing a health
360	information exchange.
361	3.  Provide guidance to stakeholders regarding the
362	effective use of health information exchanges and standards for
363	protecting the privacy and security of electronic medical
364	records.
365	(c)  The council shall consist of the following members:
366	1.  The Secretary of Health Care Administration, or his or
367	her designee.
368	2.  The State Surgeon General, or his or her designee.
369	3.  Two members appointed by and serving at the pleasure of
370	the Governor, of which:
371	a.  One member must be from the health insurance industry.
372	b.  One member must be a consumer who is a resident of the
373	state.
374	4.  Four members appointed by and serving at the pleasure
375	of the President of the Senate, of which:
376	a.  One member must be from a hospital utilizing an
377	electronic medical records system.
378	b.  One member must be a physician utilizing an electronic
379	medical records system in his or her practice.
380	c.  One member must be a representative of an operating
381	health information organization in the state.
382	d.  One member must be from a federally qualified health
383	center or other rural health organization utilizing an
384	electronic medical records system.
385	5.  Four members appointed by and serving at the pleasure
386	of the Speaker of the House of Representatives, of which:
387	a.  One member must be from a hospital utilizing an
388	electronic medical records system.
389	b.  One member must be a physician utilizing an electronic
390	medical records system in his or her practice.
391	c.  One member must be a representative of an operating
392	health information organization in the state.
393	d.  One member must be from a federally qualified health
394	center or other rural health organization utilizing an
395	electronic medical records system.
396	(d)  A member who is a representative of an operating
397	health information organization in the state must recuse himself
398	or herself during discussion, evaluation, or recommendation of a
399	grant application.
400	(e)  Each member of the council subject to appointment
401	shall be appointed to serve for a term of 4 years following the
402	date of appointment. A vacancy shall be filled by appointment
403	for the remainder of the term. Appointments shall be made within
404	45 days after the effective date of this section.
405	(f)  The council may meet at the call of the chair or at
406	the request of a majority of its membership, but the council
407	must meet at least quarterly. Meetings of the council may be
408	held via teleconference or other electronic means.
409	(g)  Members shall elect a chair and vice chair annually.
410	(h)  A majority of the members constitutes a quorum and the
411	affirmative vote of a majority of a quorum is necessary to take
412	action.
413	(i)  The council's duties and responsibilities include, but
414	are not limited to, developing recommendations to:
415	1.  Establish standards for all state-funded health
416	information exchange efforts. Such standards shall include, but
417	are not limited to, policies and procedures to protect the
418	privacy and security of electronic medical records.
419	2.  Remove barriers, including, but not limited to,
420	technological, regulatory, and financial barriers, that limit
421	participation by health care providers, health care facilities,
422	and health insurers in a health information exchange.
423	3.  Remove barriers that prevent consumers from having
424	access to their electronic medical records.
425	4.  Provide incentives to promote participation by health
426	care providers, health care facilities, and health insurers in
427	health information exchanges.
428	5.  Identify health care data held by state agencies and
429	remove barriers to making that data available to authorized
430	recipients through health information exchanges in a private and
431	secure manner.
432	6.  Increase state agency participation in health
433	information exchanges.
434	7.  Partner with other state, regional, and federal
435	entities to promote and coordinate health information exchange
436	efforts.
437	8.  Create a long-term plan for an interoperable statewide
438	network of health information organizations.
439
440	The council shall establish ad hoc issue-oriented technical
441	workgroups on an as-needed basis to make recommendations to the
442	council. The council shall consult with experts in the use of
443	health information in medical research to ensure that all
444	recommendations are consistent with the Health Insurance
445	Portability and Accountability Act of 1996, Pub. L. No. 104-199,
446	42 U.S.C. ss. 1301 et seq., and take into account the legitimate
447	uses of health information for medical research, drug
448	development, clinical trials, postapproval surveillance, and
449	public health and public agency reporting requirements.
450	(j)  The Florida Center for Health Information and Policy
451	Analysis within the agency shall provide, within existing
452	resources, staff support to enable the council to carry out its
453	responsibilities under this section.
454	(k)  Beginning July 1, 2009, the council shall annually
455	provide a report to the Governor, the President of the Senate,
456	the Speaker of the House of Representatives, and the chairs of
457	the appropriate substantive committees of the Senate and the
458	House of Representatives that includes, but is not limited to,
459	the recommendations regarding the council's duties and
460	responsibilities. In addition, by July 1, 2010, the council
461	shall recommend a long-term plan to create an interoperable
462	statewide network of health information organizations to the
463	Governor, the President of the Senate, the Speaker of the House
464	of Representatives, and the chairs of the appropriate
465	substantive committees of the Senate and the House of
466	Representatives.
467	(l)  This subsection is repealed and the council shall
468	stand abolished July 1, 2012, unless reviewed and saved from
469	repeal through reenactment by the Legislature.
470	(7)  AGENCY FOR HEALTH CARE ADMINISTRATION; DUTIES.--
471	(a)  The agency shall develop and maintain on its Internet
472	website the following information:
473	1.  Federal and private sector health information exchange
474	funding programs, including analyses of successful local and
475	state recipients of the programs, as well as unsuccessful local
476	and state applicants of the programs.
477	2.  A clearinghouse of state and national legislative,
478	regulatory, and public awareness activities related to health
479	information exchanges.
480	(b)  The agency shall develop and implement a plan that
481	promotes, at a minimum, participation in regional and statewide
482	health information exchanges and the adoption of electronic
483	medical records systems by physicians through the Electronic
484	Medical Records System Adoption Loan Program, in consultation
485	with the Florida Health Information Exchange Advisory Council,
486	organizations representing allopathic and osteopathic practicing
487	physicians, the Board of Medicine, and the Board of Osteopathic
488	Medicine.
489	(8)  PROGRAM EVALUATION; REPORT.--The Office of Program
490	Policy Analysis and Government Accountability shall complete an
491	independent evaluation of the grants program administered by the
492	agency. The evaluation must include, at a minimum, assessments
493	of the grant evaluation and distribution process; the way in
494	which grant dollars are spent; the level of participation by
495	entities within each grantee's project; the extent of clinical
496	data exchange among entities within each grantee's project; the
497	sources of funding for each grantee; and the feasibility of each
498	grantee achieving long-term sustainability without state grant
499	funding. The evaluation must assess the level at which the
500	current grants program is advancing the development of a
501	statewide health information exchange and recommend other
502	programs that may accomplish the same goal. The report shall be
503	submitted to the Governor, the President of the Senate, the
504	Speaker of the House of Representatives, and the chairs of the
505	relevant committees in the Senate and the House of
506	Representatives no later than July 1, 2009.
507	Section 4.  Subsection (5) of section 408.062, Florida
508	Statutes, is amended to read:
509	408.062  Research, analyses, studies, and reports.--
510	(5)  The agency shall develop and implement a strategy for
511	the adoption and use of electronic health records, including the
512	development of an electronic health information network for the
513	sharing of electronic health records among health care
514	facilities, health care providers, and health insurers. The
515	agency may develop rules to facilitate the functionality and
516	protect the confidentiality of electronic health records. The
517	agency shall report to the Governor, the Speaker of the House of
518	Representatives, and the President of the Senate on legislative
519	recommendations to protect the confidentiality of electronic
520	health records.
521	Section 5.  Subsection (2) of section 483.181, Florida
522	Statutes, is amended to read:
523	483.181  Acceptance, collection, identification, and
524	examination of specimens.--
525	(2)  The results of a test must be reported directly to the
526	licensed practitioner or other authorized person who requested
527	it, and appropriate disclosure may be made by the clinical
528	laboratory without a patient's consent to other health care
529	practitioners and providers involved in the care or treatment of
530	the patient for use in connection with the treatment of the
531	patient. The report must include the name and address of the
532	clinical laboratory in which the test was actually performed,
533	unless the test was performed in a hospital laboratory and the
534	report becomes an integral part of the hospital record.
535	Section 6.  This act shall take effect upon becoming a law.

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