Florida Senate - 2009                          SENATOR AMENDMENT
       Bill No. CS for CS for SB 440
       
       
       
       
       
       
                                Barcode 138908                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 1/AD/2R         .                                
             04/28/2009 02:32 PM       .                                
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       Senator Fasano moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 24 - 163
    4  and insert:
    5         (1) For purposes of this section, the term:
    6         (a) “Active investigation” has the same meaning as provided
    7  in s. 893.055.
    8         (b) “Dispenser” has the same meaning as provided in s.
    9  893.055.
   10         (c) “Health care practitioner” or “practitioner” has the
   11  same meaning as provided in s. 893.055.
   12         (d) “Health care regulatory board” has the same meaning as
   13  provided in s. 893.055.
   14         (e) “Law enforcement agency” has the same meaning as
   15  provided in s. 893.055.
   16         (f) “Pharmacist” means any person licensed under chapter
   17  465 to practice the profession of pharmacy.
   18         (g) “Pharmacy” has the same meaning as provided in s.
   19  893.055.
   20         (h) “Prescriber” has the same meaning as provided in s.
   21  893.055.
   22         (2) The following information of a patient or patient’s
   23  agent, a health care practitioner, a dispenser, an employee of
   24  the practitioner who is acting on behalf of and at the direction
   25  of the practitioner, a pharmacist, or a pharmacy that is
   26  contained in records held by the department under s. 893.055 is
   27  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
   28  of the State Constitution:
   29         (a) Name.
   30         (b) Address.
   31         (c) Telephone number.
   32         (d) Insurance plan number.
   33         (e) Government-issued identification number.
   34         (f) Provider number.
   35         (g) Drug Enforcement Administration number.
   36         (h) Any other unique identifying information or number.
   37         (3) The department shall disclose such confidential and
   38  exempt information to the following entities after using a
   39  verification process to ensure the legitimacy of that person’s
   40  or entity’s request for the information:
   41         (a) The Attorney General and his or her designee when
   42  working on Medicaid fraud cases involving prescription drugs or
   43  when the Attorney General has initiated a review of specific
   44  identifiers of Medicaid fraud regarding prescription drugs. The
   45  Attorney General or his or her designee may disclose the
   46  confidential and exempt information received from the department
   47  to a criminal justice agency as defined in s. 119.011 as part of
   48  an active investigation that is specific to a violation of
   49  prescription drug abuse or prescription drug diversion law as it
   50  relates to controlled substances. The Attorney General’s
   51  Medicaid fraud investigators may not have direct access to the
   52  department’s database.
   53         (b) The department’s relevant health care regulatory boards
   54  responsible for the licensure, regulation, or discipline of a
   55  practitioner, pharmacist, or other person who is authorized to
   56  prescribe, administer, or dispense controlled substances and who
   57  is involved in a specific controlled substances investigation
   58  for prescription drugs involving a designated person. The health
   59  care regulatory boards may request information from the
   60  department but may not have direct access to its database. The
   61  health care regulatory boards may provide such information to a
   62  law enforcement agency pursuant to ss. 456.066 and 456.073.
   63         (c) A law enforcement agency that has initiated an active
   64  investigation involving a specific violation of law regarding
   65  prescription drug abuse or diversion of prescribed controlled
   66  substances. The law enforcement agency may disclose the
   67  confidential and exempt information received from the department
   68  to a criminal justice agency as defined in s. 119.011 as part of
   69  an active investigation that is specific to a violation of
   70  prescription drug abuse or prescription drug diversion law as it
   71  relates to controlled substances. A law enforcement agency may
   72  request information from the department but may not have direct
   73  access to its database.
   74         (d) A health care practitioner who certifies that the
   75  information is necessary to provide medical treatment to a
   76  current patient in accordance with ss. 893.05 and 893.055.
   77         (e) A pharmacist who certifies that the requested
   78  information will be used to dispense controlled substances to a
   79  current patient in accordance with ss. 893.04 and 893.055.
   80         (f) A patient or the legal guardian or designated health
   81  care surrogate for an incapacitated patient, if applicable,
   82  making a request as provided in s. 893.055(7)(c)4.
   83         (g) The patient’s pharmacy, prescriber, or dispenser who
   84  certifies that the information is necessary to provide medical
   85  treatment to his or her current patient in accordance with s.
   86  893.055.
   87         (4) Any agency or person who obtains such confidential and
   88  exempt information pursuant to this section must maintain the
   89  confidential and exempt status of that information.
   90         (5) Any person who willfully and knowingly violates this
   91  section commits a felony of the third degree, punishable as
   92  provided in s. 775.082, s. 775.083, or s. 775.084.
   93         (6) This section is subject to the Open Government Sunset
   94  Review Act in accordance with s. 119.15 and shall stand repealed
   95  on October 2, 2014, unless reviewed and saved from repeal
   96  through reenactment by the Legislature.
   97  Section 2. The Legislature finds that it is a public necessity
   98  that certain identification and location information of a
   99  patient or patient’s agent; a health care practitioner as
  100  defined in s. 893.055, Florida Statutes; a dispenser as defined
  101  in s. 893.055, Florida Statutes; an employee of the practitioner
  102  who is acting on behalf of and at the direction of the
  103  practitioner; a pharmacist; or a pharmacy as defined in s.
  104  893.055, Florida Statutes, that is contained in records that are
  105  held by the Department of Health under s. 893.055, Florida
  106  Statutes, the electronic prescription drug monitoring system for
  107  the monitoring of the prescribing and dispensing of controlled
  108  substances, be made confidential and exempt from public records
  109  requirements. Specifically, the Legislature finds that it is a
  110  public necessity to make confidential and exempt the name,
  111  address, telephone number, insurance plan number, government
  112  issued identification number, provider number, Drug Enforcement
  113  Administration number, and any other unique identifying
  114  information or number. Information concerning the prescriptions
  115  that have been prescribed or dispensed to a patient is a
  116  private, personal matter between the patient, the practitioner,
  117  and the pharmacist. Nevertheless, the reporting of prescriptions
  118  on a timely and accurate basis by dispensing practitioners and
  119  pharmacists will ensure the ability of the state to review and
  120  provide oversight of prescribing and dispensing practices.
  121  Further, the reporting of this information will facilitate
  122  investigations and prosecutions of violations of state drug laws
  123  by patients, practitioners, and pharmacists, thereby increasing
  124  compliance with those laws. However, if in the process the
  125  information that would identify a patient is not made
  126  confidential and exempt from disclosure, any person could
  127  inspect and copy the record and be aware of the patient’s
  128  prescriptions. The availability of such information to the
  129  public would result in the invasion of the patient’s privacy. If
  130  the identity of the patient could be correlated with his or her
  131  prescriptions and his or her prescription dispensing history, it
  132  would be possible for the public to become aware of the diseases
  133  or other medical concerns for which a patient is being treated
  134  by his or her physician. This knowledge could be used to
  135  embarrass or to humiliate a patient or to discriminate against
  136  him or her. Requiring the reporting of prescribing and
  137  dispensing information while protecting a patient’s personal
  138  identifying information will facilitate efforts to maintain
  139  compliance with the state’s drug laws and will facilitate the
  140  sharing of information between health care practitioners and
  141  pharmacists while maintaining and ensuring patient privacy.
  142  Additionally, exempting from disclosure the personal identifying
  143  information of practitioners will ensure that an individual will
  144  not be able to identify which practitioners prescribe the
  145  largest amount of a particular type of drug and to seek out
  146  those practitioners in order to increase the likelihood of
  147  obtaining a particular prescribed substance. Further, protecting
  148  personal identifying information of pharmacists and dispensers
  149  ensures that an individual will not be able to identify which
  150  pharmacists, pharmacies, or dispensing health care practitioners
  151  dispense the largest amount of a particular controlled substance
  152  and identify that pharmacy or dispensing health care
  153  practitioner as a potential target for a robbery or burglary.
  154  Thus, the Legislature finds that it is a public necessity to
  155  make confidential and exempt from public records requirements
  156  certain identification and location information of a patient or
  157  patient’s agent, a health care practitioner, a dispenser, an
  158  employee of the practitioner who is acting on behalf of and at
  159  the direction of the practitioner, a pharmacist, or a pharmacy.
  160         Section 3. This act shall take effect July 1, 2009, if CS
  161  for CS for CS for CS for SB 462, or similar legislation
  162  establishing an
  163  
  164  ================= T I T L E  A M E N D M E N T ================
  165         And the title is amended as follows:
  166         Delete lines 2 - 16
  167  and insert:
  168  An act relating to public records; creating s. 893.0551, F.S.;
  169  providing definitions; exempting from public records
  170  requirements information and records reported to the Department
  171  of Health under the electronic prescription drug monitoring
  172  program for monitoring the prescribing and dispensing of
  173  controlled substances listed in Schedules II-IV; authorizing
  174  certain persons and entities access to patient-identifying,
  175  practitioner-identifying, or pharmacist-identifying information;
  176  providing guidelines for the use of such information and
  177  penalties for violations; providing for future legislative
  178  review and repeal; providing a finding of public necessity;
  179  providing a contingent effective date.