Florida Senate - 2009 COMMITTEE AMENDMENT
Bill No. CS for SB 440
Barcode 418676
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/31/2009 .
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The Committee on Governmental Oversight and Accountability
(Jones) recommended the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Section 893.0551, Florida Statutes, is created
6 to read:
7 893.0551 Public-records exemption for the prescription drug
8 monitoring program.—
9 (1) Identifying information, including, but not limited to,
10 the name, address, telephone number, insurance plan number,
11 government-issued identification number, provider number, Drug
12 Enforcement Administration number, or any other unique
13 identifying number of a patient, patient’s agent, health care
14 practitioner or practitioner as defined in s. 893.055, or an
15 employee of the practitioner who is acting on behalf of and at
16 the direction of the practitioner, a pharmacist, or a pharmacy,
17 which is contained in records held by the Department of Health
18 under s. 893.055, is confidential and exempt from s. 119.07(1)
19 and s. 24(a), Art. I of the State Constitution.
20 (2) The Department of Health shall disclose such
21 confidential and exempt information to the following entities
22 after verifying that entity’s request for the information is
23 legitimate:
24 (a) The Attorney General or his or her designee when
25 working on Medicaid fraud cases involving prescription drugs or
26 when the Attorney General has initiated a review of specific
27 identifiers of Medicaid fraud regarding prescription drugs. The
28 Attorney General or his or her designee may request information
29 from the Department of Health but may not have direct access to
30 its database.
31 (b) Any relevant health care regulatory board within the
32 Department of Health, as defined in s. 893.055, which is
33 responsible for the licensure, regulation, or discipline of a
34 practitioner, pharmacist, or other person who is authorized to
35 prescribe, administer, or dispense controlled substances and is
36 involved in a specific controlled substances investigation for
37 prescription drugs involving a designated person. Such health
38 care regulatory boards may request information from the
39 department but may not have direct access to its database.
40 (c) A law enforcement agency as described in s.
41 119.011(4)(a), specifically limited to the Department of Law
42 Enforcement, sheriffs in this state, police departments in this
43 state, and federal law enforcement agencies that enforce the
44 laws of this state or the United States relating to controlled
45 substances and that have initiated an ongoing and active
46 investigation, as defined in ss. 119.011 and 893.07, involving a
47 specific violation of law regarding prescription drug abuse or
48 diversion of prescribed controlled substances. Such agencies may
49 request information from the department but may not have direct
50 access to its database. Confidential and exempt information may
51 not be disclosed to a civil court or in response to any other
52 noncriminal justice-related or nonjuvenile justice-related
53 request, even if by court order.
54 (d) A health care practitioner who certifies that the
55 information is necessary to provide medical treatment to a
56 current patient in accordance with ss. 893.05 and 893.055.
57 (e) A pharmacist, as defined in s. 465.003, who certifies
58 that the requested information will be used to dispense
59 controlled substances to a current patient in accordance with
60 ss. 893.04 and 893.055.
61 (f) A patient or the legal guardian or designated health
62 care surrogate for an incapacitated patient, if applicable,
63 making a request as provided in s. 893.055(7)(c).
64 (g) The patient’s pharmacy, prescriber, or dispenser, as
65 defined in s. 893.055, who certifies that the information is
66 necessary to provide medical treatment to his or her current
67 patient in accordance with s. 893.055.
68 (h) The program manager of the electronic prescription drug
69 monitoring program, the program and support staff, and
70 individuals designated by the program manager as necessary to
71 process validated requests for information or to perform
72 database administrative tasks necessary to support the
73 monitoring program.
74 (3) Any agency or person who obtains such confidential and
75 exempt information pursuant to this section must maintain the
76 confidential and exempt status of that information. However, a
77 law enforcement agency as provided in paragraph (2)(c) which has
78 lawful access to such information may disclose confidential and
79 exempt information received from the department to a criminal
80 justice agency, as defined in s. 119.011, as part of an
81 investigation that is active, as defined in ss. 119.011 and
82 893.07, of a specific violation of a prescription drug abuse or
83 prescription drug diversion law as it relates to controlled
84 substances. Such confidential and exempt information may not be
85 disclosed to a civil court or pursuant to a noncriminal justice
86 related or nonjuvenile justice-related request, even if by court
87 order.
88 (4) Any person who willfully and knowingly violates this
89 section commits a felony of the third degree, punishable as
90 provided in s. 775.082, s. 775.083, or s. 775.084.
91 (5) This section is subject to the Open Government Sunset
92 Review Act in accordance with s. 119.15, and shall stand
93 repealed on October 2, 2014, unless reviewed and saved from
94 repeal through reenactment by the Legislature.
95 Section 2. The Legislature finds that it is a public
96 necessity that personal identifying information of a patient, a
97 practitioner as defined in ss. 893.02 and 893.055, Florida
98 Statutes, or a pharmacist as defined in s. 465.003, Florida
99 Statutes, contained in records that are reported to the
100 Department of Health under s. 893.055, Florida Statutes, the
101 prescription drug monitoring program for monitoring the
102 prescribing and dispensing of controlled substances, be made
103 confidential and exempt from disclosure. Information concerning
104 the prescriptions that a patient has been prescribed is a
105 private, personal matter between the patient, the practitioner,
106 and the pharmacist. Nevertheless, reporting of prescriptions on
107 a timely and accurate basis by dispensing practitioners and
108 pharmacists will ensure the ability of the state to review and
109 provide oversight of prescribing and dispensing practices.
110 Further, the reporting of this information will facilitate
111 investigations and prosecutions of violations of state drug laws
112 by patients, practitioners, or pharmacists, thereby increasing
113 compliance with those laws. However, if in the process the
114 information that would identify a patient is not made
115 confidential and exempt from disclosure, any person could
116 inspect and copy the record and be aware of the patient’s
117 prescriptions. The availability of such information to the
118 public would result in the invasion of the patient’s privacy. If
119 the identity of the patient could be correlated with his or her
120 prescriptions, it would be possible for the public to become
121 aware of the diseases or other medical concerns for which a
122 patient is being treated by his or her physician. This knowledge
123 could be used to embarrass or to humiliate a patient or to
124 discriminate against him or her. Requiring the reporting of
125 prescribing information, while protecting a patient’s personal
126 identifying information, will facilitate efforts to maintain
127 compliance with the state’s drug laws and will facilitate the
128 sharing of information between health care practitioners and
129 pharmacists, while maintaining and ensuring patient privacy.
130 Additionally, exempting from disclosure the personal identifying
131 information of practitioners will ensure that an individual will
132 not be able to identify which practitioners prescribe the
133 highest amount of a particular type of drug and to seek those
134 practitioners out in order to increase the likelihood of
135 obtaining a particular prescribed substance. Further, protecting
136 personal identifying information of pharmacists ensures that an
137 individual will not be able to identify which pharmacists,
138 pharmacies, or dispensing health care practitioners dispense the
139 largest amount of a particular substance and identify that
140 pharmacy or dispensing health care practitioner for robbery or
141 burglary. Thus, the Legislature finds that the personal
142 identifying information of a patient, a practitioner as defined
143 in ss. 893.02 and 893.055, Florida Statutes, or a pharmacist as
144 defined in s. 465.003, Florida Statutes, which is contained in
145 records reported under s. 893.055, Florida Statutes, must be
146 confidential and exempt from disclosure.
147 Section 3. This act shall take effect July 1, 2009, if CS
148 for CS for SB 462, or similar legislation establishing an
149 electronic system to monitor the prescribing and dispensing of
150 controlled substances, is adopted in the same legislative
151 session or an extension thereof and becomes law.
152
153 ================= T I T L E A M E N D M E N T ================
154 And the title is amended as follows:
155 Delete everything before the enacting clause
156 and insert:
157 A bill to be entitled
158 An act relating to public records; creating s.
159 893.0551, F.S.; exempting from public-records
160 requirements for information and records reported to
161 the Department of Health under the electronic
162 prescription drug monitoring program for the
163 monitoring and dispensing of prescriptions of
164 controlled substances listed in Schedules II-IV;
165 authorizing certain persons and entities access to
166 information identifying patients, practitioners, or
167 pharmacists; providing guidelines for the use of such
168 information and penalties for violations; providing
169 for future legislative review and repeal of the
170 exemption under the Open Government Sunset Review Act;
171 providing a finding of public necessity; providing a
172 contingent effective date.