Florida Senate - 2009                              CS for SB 440
       
       
       
       By the Committee on Health Regulation; and Senator Fasano
       
       
       
       
       588-02379-09                                           2009440c1
    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         Department of Health under the prescription drug
    6         validation program for the tracking of prescriptions
    7         of controlled substances listed in Schedules II-IV;
    8         authorizing certain persons and entities access to
    9         patient-identifying information; providing guidelines
   10         for the use of such information and penalties for
   11         violations; providing for future legislative review
   12         and repeal of the exemption under the Open Government
   13         Sunset Review Act; providing a finding of public
   14         necessity; providing a contingent effective date.
   15  
   16  Be It Enacted by the Legislature of the State of Florida:
   17  
   18         Section 1. Section 893.056, Florida Statutes, is created to
   19  read:
   20         893.056Public-records exemption for the prescription drug
   21  validation program for the tracking of prescriptions of
   22  controlled substances listed in Schedule II, Schedule III, or
   23  Schedule IV in s. 893.03.—
   24         (1)Identifying information, including, but not limited to,
   25  the name, address, telephone number, insurance plan number,
   26  social security number or government-issued identification
   27  number, provider number, Drug Enforcement Administration number,
   28  or any other unique identifying number of a patient, patient’s
   29  agent, health care practitioner, pharmacist, pharmacist’s agent,
   30  or pharmacy which is contained in records held by the Department
   31  of Health or any other agency as defined in s. 119.011(2) under
   32  s. 893.055, the prescription drug validation program for the
   33  tracking of prescriptions of controlled substances, is
   34  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
   35  of the State Constitution.
   36         (2)The Department of Health shall disclose such
   37  confidential and exempt information to:
   38         (a) The Agency for Health Care Administration when it has
   39  initiated a review of specific identifiers of Medicaid fraud and
   40  abuse.
   41         (b)A criminal justice agency, as defined in s. 119.011,
   42  which enforces the laws of this state or the United States
   43  relating to controlled substances and which has initiated an
   44  active investigation involving a specific violation of law.
   45         (c)A practitioner as defined in s. 893.02, or an employee
   46  of the practitioner who is acting on behalf of and at the
   47  direction of the practitioner, who requests such information and
   48  certifies that the information is necessary to provide medical
   49  treatment to a current patient in accordance with s. 893.05.
   50         (d)A pharmacist as defined in s. 465.003, or a pharmacy
   51  intern or pharmacy technician who is acting on behalf of and at
   52  the direction of the pharmacist, who requests such information
   53  and certifies that the requested information will be used to
   54  dispense controlled substances to a current patient in
   55  accordance with s. 893.04.
   56         (e)A patient who is identified in the record upon a
   57  written request for the purpose of verifying that information.
   58         (f)A judge or a probation or parole officer administering
   59  a drug or the probation program of a criminal defendant arising
   60  out of a violation of this chapter or of a criminal defendant
   61  who is documented by the court as a substance abuser and who is
   62  eligible to participate in a court-ordered drug diversion,
   63  treatment, or probation program.
   64         (g)A duly appointed medical examiner, or an investigator
   65  of the medical examiner who is acting on behalf of or at the
   66  direction of the medical examiner, who requests such information
   67  and certifies that the information is necessary in an active
   68  death investigation as provided in s. 406.11 which involves a
   69  suspected drug-related death.
   70         (3)Any agency that obtains such confidential and exempt
   71  information pursuant to this section must maintain the
   72  confidential and exempt status of that information; however, the
   73  Department of Health or a criminal justice agency that has
   74  lawful access to such information may disclose confidential and
   75  exempt information received from the Department of Health to a
   76  criminal justice agency as part of an active investigation of a
   77  specific violation of law.
   78         (4)Any person who willfully and knowingly violates this
   79  section commits a felony of the third degree, punishable as
   80  provided in s. 775.082 or s. 775.083.
   81         (5)This section is subject to the Open Government Sunset
   82  Review Act in accordance with s. 119.15, and shall stand
   83  repealed on October 2, 2014, unless reviewed and saved from
   84  repeal through reenactment by the Legislature.
   85         Section 2. The Legislature finds that it is a public
   86  necessity that personal identifying information of a patient, a
   87  practitioner as defined in s. 893.02, Florida Statutes, or a
   88  pharmacist as defined in s. 465.003, Florida Statutes, contained
   89  in records that are reported to the Department of Health under
   90  s. 893.055, Florida Statutes, the prescription drug validation
   91  program for the tracking of prescriptions of controlled
   92  substances, be made confidential and exempt from disclosure.
   93  Information concerning the prescriptions that a patient has been
   94  prescribed is a private, personal matter between the patient,
   95  the practitioner, and the pharmacist. Nevertheless, reporting of
   96  prescriptions on a timely and accurate basis by practitioners
   97  and pharmacists will ensure the ability of the state to review
   98  and provide oversight of prescribing and dispensing practices.
   99  Further, the reporting of this information will facilitate
  100  investigations and prosecutions of violations of state drug laws
  101  by patients, practitioners, or pharmacists, thereby increasing
  102  compliance with those laws. However, if in the process the
  103  information that would identify a patient is not made
  104  confidential and exempt from disclosure, any person could
  105  inspect and copy the record and be aware of the patient’s
  106  prescriptions. The availability of such information to the
  107  public would result in the invasion of the patient’s privacy. If
  108  the identity of the patient could be correlated with his or her
  109  prescriptions, it would be possible for the public to become
  110  aware of the diseases or other medical concerns for which a
  111  patient is being treated by his or her physician. This knowledge
  112  could be used to embarrass or to humiliate a patient or to
  113  discriminate against him or her. Requiring the reporting of
  114  prescribing information, while protecting a patient’s personal
  115  identifying information, will facilitate efforts to maintain
  116  compliance with the state’s drug laws and will facilitate the
  117  sharing of information between health care practitioners and
  118  pharmacists, while maintaining and ensuring patient privacy.
  119  Additionally, exempting from disclosure the personal identifying
  120  information of practitioners will ensure that an individual will
  121  not be able to identify which practitioners prescribe the
  122  highest amount of a particular type of drug and to seek those
  123  practitioners out in order to increase the likelihood of
  124  obtaining a particular prescribed substance. Further, protecting
  125  personal identifying information of pharmacists ensures that an
  126  individual will not be able to identify which pharmacists or
  127  pharmacies dispense the largest amount of a particular substance
  128  and identify that pharmacy for robbery or burglary. Thus, the
  129  Legislature finds that the personal identifying information of a
  130  patient, a practitioner as defined in s. 893.02, Florida
  131  Statutes, or a pharmacist as defined in s. 465.003, Florida
  132  Statutes, which is contained in records reported under s.
  133  893.055, Florida Statutes, must be confidential and exempt from
  134  disclosure.
  135         Section 3. This act shall take effect July 1, 2009, if CS
  136  for SB 462, or similar legislation establishing an electronic
  137  system to monitor the prescribing of controlled substances, is
  138  adopted in the same legislative session or an extension thereof
  139  and becomes law.