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         893.0551Public-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.