Florida Senate - 2009 SENATOR AMENDMENT Bill No. CS for CS for SB 440 Barcode 138908 LEGISLATIVE ACTION Senate . House . . . Floor: 1/AD/2R . 04/28/2009 02:32 PM . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— 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.