Florida Senate - 2009 SB 440
By Senator Fasano
11-00425-09 2009440__
1 A bill to be entitled
2 An act relating to public records; creating s.
3 893.056, F.S.; exempting from public-records
4 requirements information and records reported to the
5 Agency for Health Care Administration under the
6 electronic-monitoring system for the tracking of
7 prescriptions of controlled substances listed in
8 Schedules II-IV; authorizing certain persons and
9 entities access to patient-identifying information;
10 providing guidelines for the use of such information
11 and penalties for violations; providing for future
12 legislative review and repeal of the exemption under
13 the Open Government Sunset Review Act; providing a
14 finding of public necessity; providing a contingent
15 effective date.
16
17 Be It Enacted by the Legislature of the State of Florida:
18
19 Section 1. Section 893.056, Florida Statutes, is created to
20 read:
21 893.056 Public-records exemption for the electronic
22 monitoring system for the tracking of prescriptions of
23 controlled substances listed in Schedule II, Schedule III, or
24 Schedule IV in s. 893.03.—
25 (1) Identifying information, including, but not limited to,
26 the name, address, telephone number, insurance plan number,
27 social security number or government-issued identification
28 number, provider number, Drug Enforcement Administration number,
29 or any other unique identifying number of a patient, patient's
30 agent, health care practitioner, pharmacist, pharmacist's agent,
31 or pharmacy which is contained in records held by the Agency for
32 Health Care Administration or any other agency as defined in s.
33 119.011(2) under s. 893.055, the electronic-monitoring system
34 for the tracking of prescriptions of controlled substances, is
35 confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
36 of the State Constitution.
37 (2) The Agency for Health Care Administration shall
38 disclose such confidential and exempt information to:
39 (a) The Department of Health or the relevant health
40 regulatory board responsible for the licensure, regulation, or
41 discipline of practitioners, pharmacists, or other persons who
42 are authorized to prescribe, administer, or dispense controlled
43 substances and who are involved in a specific investigation
44 involving a designated person.
45 (b) A criminal justice agency, as defined in s. 119.011,
46 which enforces the laws of this state or the United States
47 relating to controlled substances and which has initiated an
48 active investigation involving a specific violation of law.
49 (c) A practitioner as defined in s. 893.02, or an employee
50 of the practitioner who is acting on behalf of and at the
51 direction of the practitioner, who requests such information and
52 certifies that the information is necessary to provide medical
53 treatment to a current patient in accordance with s. 893.05.
54 (d) A pharmacist as defined in s. 465.003, or a pharmacy
55 intern or pharmacy technician who is acting on behalf of and at
56 the direction of the pharmacist, who requests such information
57 and certifies that the requested information will be used to
58 dispense controlled substances to a current patient in
59 accordance with s. 893.04.
60 (e) A patient who is identified in the record upon a
61 written request for the purpose of verifying that information.
62 (f) A judge or a probation or parole officer administering
63 a drug or the probation program of a criminal defendant arising
64 out of a violation of chapter 893 or of a criminal defendant who
65 is documented by the court as a substance abuser and who is
66 eligible to participate in a court-ordered drug diversion,
67 treatment, or probation program.
68 (g) A duly appointed medical examiner, or an investigator
69 of the medical examiner who is acting on behalf of or at the
70 direction of the medical examiner, who requests such information
71 and certifies that the information is necessary in an active
72 death investigation as provided in s. 406.11 which involves a
73 suspected drug-related death.
74 (3) Any agency that obtains such confidential and exempt
75 information pursuant to this section must maintain the
76 confidential and exempt status of that information; however, the
77 Agency for Health Care Administration or a criminal justice
78 agency that has lawful access to such information may disclose
79 confidential and exempt information received from the Agency for
80 Health Care Administration to a criminal justice agency as part
81 of an active investigation of a specific violation of law.
82 (4) Any person who willfully and knowingly violates this
83 section commits a felony of the third degree, punishable as
84 provided in s. 775.082 or s. 775.083.
85 (5) This section is subject to the Open Government Sunset
86 Review Act in accordance with s. 119.15, and shall stand
87 repealed on October 2, 2014, unless reviewed and saved from
88 repeal through reenactment by the Legislature.
89 Section 2. The Legislature finds that it is a public
90 necessity that personal identifying information of a patient, a
91 practitioner as defined in s. 893.02, Florida Statutes, or a
92 pharmacist as defined in s. 465.003, Florida Statutes, contained
93 in records that are reported to the Agency for Health Care
94 Administration under s. 893.055, Florida Statutes, the
95 electronic-monitoring system for the tracking of prescriptions
96 of controlled substances, be made confidential and exempt from
97 disclosure. Information concerning the prescriptions that a
98 patient has been prescribed is a private, personal matter
99 between the patient, the practitioner, and the pharmacist.
100 Nevertheless, reporting of prescriptions on a timely and
101 accurate basis by practitioners and pharmacists will ensure the
102 ability of the state to review and provide oversight of
103 prescribing and dispensing practices. Further, the reporting of
104 this information will facilitate investigations and prosecutions
105 of violations of state drug laws by patients, practitioners, or
106 pharmacists, thereby increasing compliance with those laws.
107 However, if in the process the information that would identify a
108 patient is not made confidential and exempt from disclosure, any
109 person could inspect and copy the record and be aware of the
110 patient's prescriptions. The availability of such information to
111 the public would result in the invasion of the patient's
112 privacy. If the identity of the patient could be correlated with
113 his or her prescriptions, it would be possible for the public to
114 become aware of the diseases or other medical concerns for which
115 a patient is being treated by his or her physician. This
116 knowledge could be used to embarrass or to humiliate a patient
117 or to discriminate against him or her. Requiring the reporting
118 of prescribing information, while protecting a patient's
119 personal identifying information, will facilitate efforts to
120 maintain compliance with the state's drug laws and will
121 facilitate the sharing of information between health care
122 practitioners and pharmacists, while maintaining and ensuring
123 patient privacy. Additionally, exempting from disclosure the
124 personal identifying information of practitioners will ensure
125 that an individual will not be able to identify which
126 practitioners prescribe the highest amount of a particular type
127 of drug and to seek those practitioners out in order to increase
128 the likelihood of obtaining a particular prescribed substance.
129 Further, protecting personal identifying information of
130 pharmacists ensures that an individual will not be able to
131 identify which pharmacists or pharmacies dispense the largest
132 amount of a particular substance and identify that pharmacy for
133 robbery or burglary. Thus, the Legislature finds that the
134 personal identifying information of a patient, a practitioner as
135 defined in s. 893.02, Florida Statutes, or a pharmacist as
136 defined in s. 465.003, Florida Statutes, contained in records
137 reported under s. 893.055, Florida Statutes, must be
138 confidential and exempt from disclosure.
139 Section 3. This act shall take effect July 1, 2009, if
140 Senate Bill ____, or similar legislation establishing an
141 electronic system to monitor the prescribing of controlled
142 substances, is adopted in the same legislative session or an
143 extension thereof and becomes law.