Florida Senate - 2009 CS for CS for SB 440 By the Committees on Governmental Oversight and Accountability; and Health Regulation; and Senator Fasano 585-03925-09 2009440c2 1 A bill to be entitled 2 An act relating to public records; creating s. 3 893.0551, F.S.; exempting from public-records 4 requirements for information and records reported to 5 the Department of Health under the electronic 6 prescription drug monitoring program for the 7 monitoring and dispensing of prescriptions of 8 controlled substances listed in Schedules II-IV; 9 authorizing certain persons and entities access to 10 information identifying patients, practitioners, or 11 pharmacists; providing guidelines for the use of such 12 information and penalties for violations; providing 13 for future legislative review and repeal of the 14 exemption under the Open Government Sunset Review Act; 15 providing a finding of public necessity; providing a 16 contingent effective date. 17 18 Be It Enacted by the Legislature of the State of Florida: 19 20 Section 1. Section 893.0551, Florida Statutes, is created 21 to read: 22 893.0551 Public-records exemption for the prescription drug 23 monitoring program.— 24 (1) Identifying information, including, but not limited to, 25 the name, address, telephone number, insurance plan number, 26 government-issued identification number, provider number, Drug 27 Enforcement Administration number, or any other unique 28 identifying number of a patient, patient’s agent, health care 29 practitioner or practitioner as defined in s. 893.055, or an 30 employee of the practitioner who is acting on behalf of and at 31 the direction of the practitioner, a pharmacist, or a pharmacy, 32 which is contained in records held by the Department of Health 33 under s. 893.055, is confidential and exempt from s. 119.07(1) 34 and s. 24(a), Art. I of the State Constitution. 35 (2) The Department of Health shall disclose such 36 confidential and exempt information to the following entities 37 after verifying that entity’s request for the information is 38 legitimate: 39 (a) The Attorney General or his or her designee when 40 working on Medicaid fraud cases involving prescription drugs or 41 when the Attorney General has initiated a review of specific 42 identifiers of Medicaid fraud regarding prescription drugs. The 43 Attorney General or his or her designee may request information 44 from the Department of Health but may not have direct access to 45 its database. 46 (b) Any relevant health care regulatory board within the 47 Department of Health, as defined in s. 893.055, which is 48 responsible for the licensure, regulation, or discipline of a 49 practitioner, pharmacist, or other person who is authorized to 50 prescribe, administer, or dispense controlled substances and is 51 involved in a specific controlled substances investigation for 52 prescription drugs involving a designated person. Such health 53 care regulatory boards may request information from the 54 department but may not have direct access to its database. 55 (c) A law enforcement agency as described in s. 56 119.011(4)(a), specifically limited to the Department of Law 57 Enforcement, sheriffs in this state, police departments in this 58 state, and federal law enforcement agencies that enforce the 59 laws of this state or the United States relating to controlled 60 substances and that have initiated an ongoing and active 61 investigation, as defined in ss. 119.011 and 893.07, involving a 62 specific violation of law regarding prescription drug abuse or 63 diversion of prescribed controlled substances. Such agencies may 64 request information from the department but may not have direct 65 access to its database. Confidential and exempt information may 66 not be disclosed to a civil court or in response to any other 67 noncriminal justice-related or nonjuvenile justice-related 68 request, even if by court order. 69 (d) A health care practitioner who certifies that the 70 information is necessary to provide medical treatment to a 71 current patient in accordance with ss. 893.05 and 893.055. 72 (e) A pharmacist, as defined in s. 465.003, who certifies 73 that the requested information will be used to dispense 74 controlled substances to a current patient in accordance with 75 ss. 893.04 and 893.055. 76 (f) A patient or the legal guardian or designated health 77 care surrogate for an incapacitated patient, if applicable, 78 making a request as provided in s. 893.055(7)(c). 79 (g) The patient’s pharmacy, prescriber, or dispenser, as 80 defined in s. 893.055, who certifies that the information is 81 necessary to provide medical treatment to his or her current 82 patient in accordance with s. 893.055. 83 (h) The program manager of the electronic prescription drug 84 monitoring program, the program and support staff, and 85 individuals designated by the program manager as necessary to 86 process validated requests for information or to perform 87 database administrative tasks necessary to support the 88 monitoring program. 89 (3) Any agency or person who obtains such confidential and 90 exempt information pursuant to this section must maintain the 91 confidential and exempt status of that information. However, a 92 law enforcement agency as provided in paragraph (2)(c) which has 93 lawful access to such information may disclose confidential and 94 exempt information received from the department to a criminal 95 justice agency, as defined in s. 119.011, as part of an 96 investigation that is active, as defined in ss. 119.011 and 97 893.07, of a specific violation of a prescription drug abuse or 98 prescription drug diversion law as it relates to controlled 99 substances. Such confidential and exempt information may not be 100 disclosed to a civil court or pursuant to a noncriminal justice 101 related or nonjuvenile justice-related request, even if by court 102 order. 103 (4) Any person who willfully and knowingly violates this 104 section commits a felony of the third degree, punishable as 105 provided in s. 775.082, s. 775.083, or s. 775.084. 106 (5) This section is subject to the Open Government Sunset 107 Review Act in accordance with s. 119.15, and shall stand 108 repealed on October 2, 2014, unless reviewed and saved from 109 repeal through reenactment by the Legislature. 110 Section 2. The Legislature finds that it is a public 111 necessity that personal identifying information of a patient, a 112 practitioner as defined in ss. 893.02 and 893.055, Florida 113 Statutes, or a pharmacist as defined in s. 465.003, Florida 114 Statutes, contained in records that are reported to the 115 Department of Health under s. 893.055, Florida Statutes, the 116 prescription drug monitoring program for monitoring the 117 prescribing and dispensing of controlled substances, be made 118 confidential and exempt from disclosure. Information concerning 119 the prescriptions that a patient has been prescribed is a 120 private, personal matter between the patient, the practitioner, 121 and the pharmacist. Nevertheless, reporting of prescriptions on 122 a timely and accurate basis by dispensing practitioners and 123 pharmacists will ensure the ability of the state to review and 124 provide oversight of prescribing and dispensing practices. 125 Further, the reporting of this information will facilitate 126 investigations and prosecutions of violations of state drug laws 127 by patients, practitioners, or pharmacists, thereby increasing 128 compliance with those laws. However, if in the process the 129 information that would identify a patient is not made 130 confidential and exempt from disclosure, any person could 131 inspect and copy the record and be aware of the patient’s 132 prescriptions. The availability of such information to the 133 public would result in the invasion of the patient’s privacy. If 134 the identity of the patient could be correlated with his or her 135 prescriptions, it would be possible for the public to become 136 aware of the diseases or other medical concerns for which a 137 patient is being treated by his or her physician. This knowledge 138 could be used to embarrass or to humiliate a patient or to 139 discriminate against him or her. Requiring the reporting of 140 prescribing information, while protecting a patient’s personal 141 identifying information, will facilitate efforts to maintain 142 compliance with the state’s drug laws and will facilitate the 143 sharing of information between health care practitioners and 144 pharmacists, while maintaining and ensuring patient privacy. 145 Additionally, exempting from disclosure the personal identifying 146 information of practitioners will ensure that an individual will 147 not be able to identify which practitioners prescribe the 148 highest amount of a particular type of drug and to seek those 149 practitioners out in order to increase the likelihood of 150 obtaining a particular prescribed substance. Further, protecting 151 personal identifying information of pharmacists ensures that an 152 individual will not be able to identify which pharmacists, 153 pharmacies, or dispensing health care practitioners dispense the 154 largest amount of a particular substance and identify that 155 pharmacy or dispensing health care practitioner for robbery or 156 burglary. Thus, the Legislature finds that the personal 157 identifying information of a patient, a practitioner as defined 158 in ss. 893.02 and 893.055, Florida Statutes, or a pharmacist as 159 defined in s. 465.003, Florida Statutes, which is contained in 160 records reported under s. 893.055, Florida Statutes, must be 161 confidential and exempt from disclosure. 162 Section 3. This act shall take effect July 1, 2009, if CS 163 for CS for CS for SB 462, or similar legislation establishing an 164 electronic system to monitor the prescribing and dispensing of 165 controlled substances, is adopted in the same legislative 166 session or an extension thereof and becomes law.