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: 22 893.0551 Public-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.