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: 20 893.056 Public-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.