CS for CS for SB 440                             First Engrossed
       
       
       
       
       
       
       
       
       2009440e1
       
    1                        A bill to be entitled                      
    2         An act relating to public records; creating s.
    3         893.0551, F.S.; providing definitions; exempting from
    4         public records requirements information and records
    5         reported to the Department of Health under the
    6         electronic prescription drug monitoring program for
    7         monitoring the prescribing and dispensing of
    8         controlled substances listed in Schedules II-IV;
    9         authorizing certain persons and entities access to
   10         patient-identifying, practitioner-identifying, or
   11         pharmacist-identifying information; providing
   12         guidelines for the use of such information and
   13         penalties for violations; providing for future
   14         legislative review and repeal; providing a finding of
   15         public necessity; providing a contingent effective
   16         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) For purposes of this section, the term:
   25         (a) “Active investigation” has the same meaning as provided
   26  in s. 893.055.
   27         (b) “Dispenser” has the same meaning as provided in s.
   28  893.055.
   29         (c) “Health care practitioner” or “practitioner” has the
   30  same meaning as provided in s. 893.055.
   31         (d) “Health care regulatory board” has the same meaning as
   32  provided in s. 893.055.
   33         (e) “Law enforcement agency” has the same meaning as
   34  provided in s. 893.055.
   35         (f) “Pharmacist” means any person licensed under chapter
   36  465 to practice the profession of pharmacy.
   37         (g) “Pharmacy” has the same meaning as provided in s.
   38  893.055.
   39         (h) “Prescriber” has the same meaning as provided in s.
   40  893.055.
   41         (2) The following information of a patient or patient’s
   42  agent, a health care practitioner, a dispenser, an employee of
   43  the practitioner who is acting on behalf of and at the direction
   44  of the practitioner, a pharmacist, or a pharmacy that is
   45  contained in records held by the department under s. 893.055 is
   46  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
   47  of the State Constitution:
   48         (a) Name.
   49         (b) Address.
   50         (c) Telephone number.
   51         (d) Insurance plan number.
   52         (e) Government-issued identification number.
   53         (f) Provider number.
   54         (g) Drug Enforcement Administration number.
   55         (h) Any other unique identifying information or number.
   56         (3) The department shall disclose such confidential and
   57  exempt information to the following entities after using a
   58  verification process to ensure the legitimacy of that person’s
   59  or entity’s request for the information:
   60         (a) The Attorney General and his or her designee when
   61  working on Medicaid fraud cases involving prescription drugs or
   62  when the Attorney General has initiated a review of specific
   63  identifiers of Medicaid fraud regarding prescription drugs. The
   64  Attorney General or his or her designee may disclose the
   65  confidential and exempt information received from the department
   66  to a criminal justice agency as defined in s. 119.011 as part of
   67  an active investigation that is specific to a violation of
   68  prescription drug abuse or prescription drug diversion law as it
   69  relates to controlled substances. The Attorney General’s
   70  Medicaid fraud investigators may not have direct access to the
   71  department’s database.
   72         (b) The department’s relevant health care regulatory boards
   73  responsible for the licensure, regulation, or discipline of a
   74  practitioner, pharmacist, or other person who is authorized to
   75  prescribe, administer, or dispense controlled substances and who
   76  is involved in a specific controlled substances investigation
   77  for prescription drugs involving a designated person. The health
   78  care regulatory boards may request information from the
   79  department but may not have direct access to its database. The
   80  health care regulatory boards may provide such information to a
   81  law enforcement agency pursuant to ss. 456.066 and 456.073.
   82         (c) A law enforcement agency that has initiated an active
   83  investigation involving a specific violation of law regarding
   84  prescription drug abuse or diversion of prescribed controlled
   85  substances. The law enforcement agency may disclose the
   86  confidential and exempt information received from the department
   87  to a criminal justice agency as defined in s. 119.011 as part of
   88  an active investigation that is specific to a violation of
   89  prescription drug abuse or prescription drug diversion law as it
   90  relates to controlled substances. A law enforcement agency may
   91  request information from the department but may not have direct
   92  access to its database.
   93         (d) A health care practitioner who certifies that the
   94  information is necessary to provide medical treatment to a
   95  current patient in accordance with ss. 893.05 and 893.055.
   96         (e) A pharmacist who certifies that the requested
   97  information will be used to dispense controlled substances to a
   98  current patient in accordance with ss. 893.04 and 893.055.
   99         (f) A patient or the legal guardian or designated health
  100  care surrogate for an incapacitated patient, if applicable,
  101  making a request as provided in s. 893.055(7)(c)4.
  102         (g) The patient’s pharmacy, prescriber, or dispenser who
  103  certifies that the information is necessary to provide medical
  104  treatment to his or her current patient in accordance with s.
  105  893.055.
  106         (4) Any agency or person who obtains such confidential and
  107  exempt information pursuant to this section must maintain the
  108  confidential and exempt status of that information.
  109         (5) Any person who willfully and knowingly violates this
  110  section commits a felony of the third degree, punishable as
  111  provided in s. 775.082, s. 775.083, or s. 775.084.
  112         (6) This section is subject to the Open Government Sunset
  113  Review Act in accordance with s. 119.15 and shall stand repealed
  114  on October 2, 2014, unless reviewed and saved from repeal
  115  through reenactment by the Legislature.
  116         Section 2. The Legislature finds that it is a public
  117  necessity that certain identification and location information
  118  of a patient or patient’s agent; a health care practitioner as
  119  defined in s. 893.055, Florida Statutes; a dispenser as defined
  120  in s. 893.055, Florida Statutes; an employee of the practitioner
  121  who is acting on behalf of and at the direction of the
  122  practitioner; a pharmacist; or a pharmacy as defined in s.
  123  893.055, Florida Statutes, that is contained in records that are
  124  held by the Department of Health under s. 893.055, Florida
  125  Statutes, the electronic prescription drug monitoring system for
  126  the monitoring of the prescribing and dispensing of controlled
  127  substances, be made confidential and exempt from public records
  128  requirements. Specifically, the Legislature finds that it is a
  129  public necessity to make confidential and exempt the name,
  130  address, telephone number, insurance plan number, government
  131  issued identification number, provider number, Drug Enforcement
  132  Administration number, and any other unique identifying
  133  information or number. Information concerning the prescriptions
  134  that have been prescribed or dispensed to a patient is a
  135  private, personal matter between the patient, the practitioner,
  136  and the pharmacist. Nevertheless, the reporting of prescriptions
  137  on a timely and accurate basis by dispensing practitioners and
  138  pharmacists will ensure the ability of the state to review and
  139  provide oversight of prescribing and dispensing practices.
  140  Further, the reporting of this information will facilitate
  141  investigations and prosecutions of violations of state drug laws
  142  by patients, practitioners, and pharmacists, thereby increasing
  143  compliance with those laws. However, if in the process the
  144  information that would identify a patient is not made
  145  confidential and exempt from disclosure, any person could
  146  inspect and copy the record and be aware of the patient’s
  147  prescriptions. The availability of such information to the
  148  public would result in the invasion of the patient’s privacy. If
  149  the identity of the patient could be correlated with his or her
  150  prescriptions and his or her prescription dispensing history, it
  151  would be possible for the public to become aware of the diseases
  152  or other medical concerns for which a patient is being treated
  153  by his or her physician. This knowledge could be used to
  154  embarrass or to humiliate a patient or to discriminate against
  155  him or her. Requiring the reporting of prescribing and
  156  dispensing information while protecting a patient’s personal
  157  identifying information will facilitate efforts to maintain
  158  compliance with the state’s drug laws and will facilitate the
  159  sharing of information between health care practitioners and
  160  pharmacists while maintaining and ensuring patient privacy.
  161  Additionally, exempting from disclosure the personal identifying
  162  information of practitioners will ensure that an individual will
  163  not be able to identify which practitioners prescribe the
  164  largest amount of a particular type of drug and to seek out
  165  those practitioners in order to increase the likelihood of
  166  obtaining a particular prescribed substance. Further, protecting
  167  personal identifying information of pharmacists and dispensers
  168  ensures that an individual will not be able to identify which
  169  pharmacists, pharmacies, or dispensing health care practitioners
  170  dispense the largest amount of a particular controlled substance
  171  and identify that pharmacy or dispensing health care
  172  practitioner as a potential target for a robbery or burglary.
  173  Thus, the Legislature finds that it is a public necessity to
  174  make confidential and exempt from public records requirements
  175  certain identification and location information of a patient or
  176  patient’s agent, a health care practitioner, a dispenser, an
  177  employee of the practitioner who is acting on behalf of and at
  178  the direction of the practitioner, a pharmacist, or a pharmacy.
  179         Section 3. This act shall take effect July 1, 2009, if CS
  180  for CS for CS for CS for SB 462, or similar legislation
  181  establishing an electronic system to monitor the prescribing and
  182  dispensing of controlled substances, is adopted in the same
  183  legislative session or an extension thereof and becomes law.