Florida Senate - 2014                                    SB 1042
       By Senator Sobel
       33-00509C-14                                          20141042__
    1                        A bill to be entitled                      
    2         An act relating to nursing home records; amending s.
    3         400.145, F.S.; requiring a nursing home to provide a
    4         copy of a resident’s paper and electronic records upon
    5         receipt of a written request that meets certain
    6         federal requirements; specifying the contents of such
    7         records; requiring a facility to furnish a resident’s
    8         records within a certain timeframe; authorizing
    9         certain persons to make a request for a deceased
   10         resident’s records; requiring that a request for a
   11         deceased resident’s records be in writing and meet
   12         certain federal requirements; specifying certain
   13         documentation that must accompany a request for a
   14         deceased resident’s records; authorizing a facility to
   15         refuse to furnish records under certain circumstances;
   16         providing that a facility is not criminally or civilly
   17         liable for furnishing a resident’s records under
   18         certain circumstances; amending s. 429.294, F.S.;
   19         conforming provisions to changes made by the act;
   20         providing an effective date.
   22  Be It Enacted by the Legislature of the State of Florida:
   24         Section 1. Section 400.145, Florida Statutes, is amended to
   25  read:
   26         400.145 Records of care and treatment of resident; copies
   27  to be furnished.—
   28         (1) Upon receipt of a written request that complies with
   29  the requirements of the federal Health Insurance Portability and
   30  Accountability Act of 1996 (HIPAA), 42 U.S.C. ss. 1320d-2 et
   31  seq., a Unless expressly prohibited by a legally competent
   32  resident, any nursing home licensed pursuant to this part shall
   33  furnish to a legally competent resident of the nursing home, or
   34  to a representative of that resident authorized to make requests
   35  for the resident’s records under HIPAA or this section, a copy
   36  of that resident’s paper and electronic records that are in the
   37  possession of the facility. Such records must include medical
   38  and psychiatric records and any records concerning the care and
   39  treatment of the resident performed by the facility. The
   40  facility shall furnish such records: the spouse, guardian,
   41  surrogate, proxy, or attorney in fact, as provided in chapters
   42  744 and 765, of a current resident
   43         (a) For a current resident, within 14 7 working days after
   44  receipt of the a written request;, or
   45         (b)For of a former resident, within 30 10 working days
   46  after receipt of the a written request, a copy of that
   47  resident’s records which are in the possession of the facility.
   48  Such records shall include medical and psychiatric records and
   49  any records concerning the care and treatment of the resident
   50  performed by the facility, except progress notes and
   51  consultation report sections of a psychiatric nature. Copies of
   52  such records shall not be considered part of a deceased
   53  resident’s estate and may be made available prior to the
   54  administration of an estate, upon request, to the spouse,
   55  guardian, surrogate, proxy, or attorney in fact, as provided in
   56  chapters 744 and 765.
   57         (2) A request for a deceased resident’s records may be made
   58  by:
   59         (a) A person duly appointed by a court of competent
   60  jurisdiction to act as the personal representative, executor,
   61  administrator, or temporary administrator of the deceased
   62  resident’s estate.
   63         (b) A person designated by the resident to act as his or
   64  her representative in a legally valid will if a judicial
   65  appointment has not been made.
   66         (c) One of the following if a judicial appointment has not
   67  been made and a representative has not been named in a legally
   68  valid will:
   69         1. A surviving spouse of the deceased resident.
   70         2. A surviving child of the deceased resident if there is
   71  no surviving spouse.
   72         3. A parent of the deceased resident if there is no
   73  surviving spouse or child.
   74         (3) A request for a deceased resident’s records must be in
   75  writing and must comply with the requirements of this section
   76  and HIPAA. A person authorized to make a request under
   77  subsection (2) must include one of the following in his or her
   78  written request:
   79         (a) A copy of the order appointing such person as the
   80  representative of the deceased resident’s estate.
   81         (b) A copy of the will designating such person as the
   82  deceased resident’s representative.
   83         (c) A letter from such person’s attorney verifying his or
   84  her relationship to the deceased resident and the absence of a
   85  court-appointed representative and a legally valid will.
   86         (4) A facility may charge a reasonable fee for the copying
   87  of resident records. Such fee may shall not exceed $1 per page
   88  for the first 25 pages and 25 cents per page for each page in
   89  excess of 25 pages.
   90         (5) The facility shall further allow a person authorized to
   91  obtain a resident’s records any such spouse, guardian,
   92  surrogate, proxy, or attorney in fact, as provided in chapters
   93  744 and 765, to examine the original records, or microfilms or
   94  other suitable reproductions of such records, in the its
   95  possession of the facility subject to, or microfilms or other
   96  suitable reproductions of the records, upon such reasonable
   97  terms that as shall be imposed, to help ensure assure that the
   98  records are not damaged, destroyed, or altered.
   99         (6) If a facility determines that disclosure of the
  100  resident’s records will be detrimental to his or her physical or
  101  mental health, the facility may refuse to furnish the records.
  102  Upon such refusal, and upon written request by the resident, the
  103  resident’s records shall be furnished to any other medical
  104  provider designated by the resident.
  105         (7) A requesting party will not be indemnified by a
  106  facility that releases copies of records in good faith under
  107  this section and the facility may not be found to have violated
  108  any criminal or civil laws, and is not civilly liable to the
  109  resident, the resident’s estate, or any other person.
  110         (8)(2)A No person may not shall be allowed to obtain
  111  copies of a resident’s residents’ records pursuant to this
  112  section more often than once per month, except that physicians’
  113  physician’s reports that are included in those in the residents’
  114  records may be obtained as often as necessary to effectively
  115  monitor the resident’s residents’ condition.
  116         Section 2. Subsection (1) of section 429.294, Florida
  117  Statutes, is amended to read:
  118         429.294 Availability of facility records for investigation
  119  of resident’s rights violations and defenses; penalty.—
  120         (1) Failure to provide complete copies of a resident’s
  121  records, including, but not limited to, all medical records and
  122  the resident’s chart, within the control or possession of the
  123  facility within 10 days, in accordance with the provisions of s.
  124  400.145, constitutes shall constitute evidence of failure of
  125  that party to comply with good faith discovery requirements and
  126  waives shall waive the good faith certificate and presuit notice
  127  requirements under this part by the requesting party.
  128         Section 3. This act shall take effect July 1, 2014.