Florida Senate - 2017 CS for SB 804 By the Committee on Health Policy; and Senator Brandes 588-02407-17 2017804c1 1 A bill to be entitled 2 An act relating to electronic health records; amending 3 s. 765.101, F.S.; redefining the terms “health care 4 decision” and “incapacity” or “incompetent”; creating 5 s. 765.114, F.S.; authorizing a person to donate his 6 or her electronic health records, subject to certain 7 requirements; authorizing electronic health records 8 and qualified electronic health records to be donated 9 to specified entities for specified purposes; 10 providing a form for a uniform donor card; requiring 11 electronic health records and qualified electronic 12 health records donated by a health care surrogate or 13 proxy to be de-identified; authorizing electronic 14 health records and qualified electronic health records 15 to contain a donor’s identifying information under 16 certain conditions; authorizing a donor to amend the 17 terms or revoke an electronic health records donation 18 in specified manners; creating s. 765.1141, F.S.; 19 requiring the Agency for Health Care Administration 20 and the Department of Highway Safety and Motor 21 Vehicles to develop and implement a program that 22 encourages and authorizes persons to donate electronic 23 health records and qualified electronic health records 24 as part of a process of issuing and renewing 25 identification cards and driver licenses; requiring 26 specified information to be included in the donor 27 registration card distributed by the department; 28 requiring the agency and the department to develop and 29 implement a program to identify donors through 30 notations on identification cards and driver licenses; 31 requiring the agency to provide certain supplies and 32 forms, and the department to provide a recordkeeping 33 system; prohibiting the department and agency from 34 incurring liability in connection with the performance 35 of certain acts; requiring the department to maintain 36 a link on its website referring visitors to an 37 electronic health records repository under certain 38 circumstances; requiring rulemaking; amending s. 39 765.203, F.S.; revising the suggested form for 40 designation of a health care surrogate to expand 41 health care decision authority of the health care 42 surrogate; providing an effective date. 43 44 Be It Enacted by the Legislature of the State of Florida: 45 46 Section 1. Paragraph (e) is added to subsection (6) of 47 section 765.101, Florida Statutes, and subsection (10) of that 48 section is amended, to read: 49 765.101 Definitions.—As used in this chapter: 50 (6) “Health care decision” means: 51 (e) The right of a health care surrogate or proxy to donate 52 the principal’s electronic health records and qualified 53 electronic health records, as defined in s. 408.051, upon the 54 principal’s death to an approved medical or dental school, 55 college, university, hospital, or repository that collects, 56 stores, and shares de-identified electronic health records in 57 the public domain for purposes of educating or developing 58 diagnoses, treatment choices, policies, health care system 59 designs, and innovations in order to improve health outcomes and 60 reduce health care costs. For purposes of this paragraph, the 61 term “approved” means approved by the Department of Health. 62 (10) “Incapacity” or “incompetent” means the patient is 63 physically or mentally unable to communicate a willful and 64 knowing health care decision. For the purposes of making an 65 anatomical gift or donating electronic health records or 66 qualified electronic health records, the term also includes a 67 patient who is deceased. 68 Section 2. Section 765.114, Florida Statutes, is created to 69 read: 70 765.114 Donating electronic health records and qualified 71 electronic health records.— 72 (1) A person may donate all or part of his or her 73 electronic health records or qualified electronic health records 74 by doing any of the following: 75 (a) Signing an electronic health records donor card. 76 (b) Indicating an intent to donate on his or her driver 77 license or identification card issued by the Department of 78 Highway Safety and Motor Vehicles. Revocation, suspension, 79 expiration, or cancellation of the driver license or 80 identification card does not invalidate the intent to donate. 81 (c) Expressing a wish to donate in a living will or other 82 advance directive. 83 (d) Expressing a wish to donate in a will. The donation 84 becomes effective upon the death of the testator without waiting 85 for probate. If the will is not probated or if it is declared 86 invalid for testamentary purposes, the donation is nevertheless 87 valid to the extent that it has been acted upon in good faith. 88 (e) Expressing a wish to donate in a document other than a 89 will. The document must be signed by the donor in the presence 90 of two adult witnesses, who must sign the document in the 91 donor’s presence. If the donor cannot sign, the document may be 92 signed by another person at the donor’s direction and in his or 93 her presence and in the presence of two witnesses, who must sign 94 the document in the donor’s presence. Delivery of the document 95 during the donor’s lifetime is not necessary to make the intent 96 to donate valid. The following form of written document is 97 sufficient for any person to make a donation of electronic 98 health records or qualified electronic health records for the 99 purposes of this part: 100 101 UNIFORM ELECTRONIC HEALTH RECORDS DONOR CARD 102 103 The undersigned hereby makes this health records donation, to 104 take effect on death. The words and marks below indicate my 105 desires: 106 I give: 107 1. .... all electronic health records; 108 2. .... only the following electronic health records: 109 ...[Specify the health records]... 110 for the purpose of medical research or education. 111 112 Signed by the donor and the following witnesses in the presence 113 of each other: 114 115 ...(Signature of donor)... ...(Date of birth of donor)... 116 ...(Date signed)... ...(City and State)... 117 118 ...(Witness)... ...(Witness)... 119 ...(Address)... ...(Address)... 120 121 (2) The de-identified electronic health records or 122 qualified electronic health records may be given to one or more 123 donees that are accredited medical or dental schools, colleges, 124 universities, hospitals, or repositories for the purposes of 125 educating or developing diagnoses, treatment choices, policies, 126 health care system designs, and innovations to improve health 127 outcomes and reduce health care costs. Electronic health records 128 or qualified electronic health records with a donor’s 129 identifying information may be given to a donee upon written 130 consent of the donor. The donees must be approved by the 131 Department of Health and may be specified by name. 132 (3) Any electronic health records or qualified electronic 133 health records donated by a health care surrogate or proxy 134 designated by the decedent pursuant to part II of this chapter 135 must be de-identified, unless the donee provides written consent 136 stating that his or her identifying information may be included 137 with such records, and such donation must be made by a document 138 signed by that person or made by that person’s witnessed 139 telephonic discussion, telegraphic message, or other recorded 140 message. 141 (4) A donor may amend the terms of or revoke a donation of 142 electronic health records or qualified electronic health records 143 by any of the following means: 144 (a) The execution and delivery to the donee of a signed 145 statement witnessed by at least two adults, one of whom is a 146 disinterested witness. 147 (b) An oral statement that is made in the presence of two 148 adult witnesses, one of whom is not a family member, and 149 communicated to the donor’s family or attorney or to the donee. 150 An oral statement is effective only if the medical or dental 151 school, college, university, hospital, or repository has actual 152 notice of the oral amendment or revocation. 153 (c) An oral statement made during a terminal illness or 154 injury addressed to the primary physician, who must communicate 155 the revocation of the gift to the medical or dental school, 156 college, university, hospital, or repository. 157 (d) A signed document found on or about the donor’s person. 158 (e) A later-executed document of donation which amends or 159 revokes a previous health records donation or portion of a 160 health records donation, either expressly or by inconsistency. 161 (f) The destruction or cancellation, with the intent to 162 revoke the donation, of the document that indicates the intent 163 to donate or the destruction or cancellation of that portion of 164 the document which indicates the intent to donate. 165 Section 3. Section 765.1141, Florida Statutes, is created 166 to read: 167 765.1141 Electronic health records donations as part of 168 driver license or identification card process.— 169 (1) The Agency for Health Care Administration and the 170 Department of Highway Safety and Motor Vehicles shall develop 171 and implement a program encouraging and authorizing persons to 172 donate electronic health records and qualified electronic health 173 records, as defined in s. 408.051, as a part of the process of 174 issuing and renewing identification cards and driver licenses. 175 The donor registration card distributed by the department must 176 include the information and signatures required in the uniform 177 electronic health records donor card under s. 765.114(1)(e) and 178 such additional information as determined necessary by the 179 department. The department shall also develop and implement a 180 program to identify donors which includes notations on 181 identification cards and driver licenses to clearly indicate the 182 individual’s intent to donate his or her electronic health 183 records. The agency shall provide the necessary supplies and 184 forms using appropriated funds or contributions from interested 185 voluntary, nonprofit organizations. The department shall provide 186 the necessary recordkeeping system using appropriated funds. The 187 department and the agency do not incur liability in connection 188 with the performance of any act authorized in this section. 189 (2) The department shall maintain an integrated link on its 190 website referring a visitor renewing an identification card or a 191 driver license or conducting other business to an electronic 192 health records repository if available. 193 (3) The department, after consultation with and concurrence 194 by the agency, shall adopt rules to implement this section 195 pursuant to chapter 120. 196 Section 4. Section 765.203, Florida Statutes, is amended to 197 read: 198 765.203 Suggested form of designation.—A written 199 designation of a health care surrogate executed pursuant to this 200 chapter may, but need not be, in the following form: 201 202 DESIGNATION OF HEALTH CARE SURROGATE 203 204 I, ...(name)..., designate as my health care surrogate under s. 205 765.202, Florida Statutes: 206 207 Name: ...(name of health care surrogate)... 208 Address: ...(address)... 209 Phone: ...(telephone)... 210 211 If my health care surrogate is not willing, able, or reasonably 212 available to perform his or her duties, I designate as my 213 alternate health care surrogate: 214 215 Name: ...(name of alternate health care surrogate)... 216 Address: ...(address)... 217 Phone: ...(telephone)... 218 219 INSTRUCTIONS FOR HEALTH CARE 220 221 I authorize my health care surrogate to: 222 ...(Initial here)... Receive any of my health information, 223 whether oral or recorded in any form or medium, that: 224 1. Is created or received by a health care provider, health 225 care facility, health plan, public health authority, employer, 226 life insurer, school or university, or health care 227 clearinghouse; and 228 2. Relates to my past, present, or future physical or 229 mental health or condition; the provision of health care to me; 230 or the past, present, or future payment for the provision of 231 health care to me. 232 I further authorize my health care surrogate to: 233 ...(Initial here)... Make all health care decisions for me, 234 which means he or she has the authority to: 235 1. Provide informed consent, refusal of consent, or 236 withdrawal of consent to any and all of my health care, 237 including life-prolonging procedures. 238 2. Apply on my behalf for private, public, government, or 239 veterans’ benefits to defray the cost of health care. 240 3. Access my health information reasonably necessary for 241 the health care surrogate to make decisions involving my health 242 care and to apply for benefits for me. 243 4. Decide to make an anatomical gift pursuant to part V of 244 chapter 765, Florida Statutes. 245 5. Donate my electronic health records and qualified 246 electronic health records, as defined in s. 408.051, Florida 247 Statutes, to one or more accredited medical or dental schools, 248 colleges, universities, hospitals, or repositories, approved by 249 the Department of Health, to share my de-identified health 250 records for purposes of developing diagnoses, treatment choices, 251 policies, health care system designs, and innovations to improve 252 health outcomes and reduce health care costs. 253 ...(Initial here)... Specific instructions and 254 restrictions: .................................................. 255 ................................................................ 256 ................................................................ 257 258 While I have decisionmaking capacity, my wishes are controlling 259 and my physicians and health care providers must clearly 260 communicate to me the treatment plan or any change to the 261 treatment plan prior to its implementation. 262 263 To the extent I am capable of understanding, my health care 264 surrogate shall keep me reasonably informed of all decisions 265 that he or she has made on my behalf and matters concerning me. 266 267 THIS HEALTH CARE SURROGATE DESIGNATION IS NOT AFFECTED BY MY 268 SUBSEQUENT INCAPACITY EXCEPT AS PROVIDED IN CHAPTER 765, FLORIDA 269 STATUTES. 270 271 PURSUANT TO SECTION 765.104, FLORIDA STATUTES, I UNDERSTAND THAT 272 I MAY, AT ANY TIME WHILE I RETAIN MY CAPACITY, REVOKE OR AMEND 273 THIS DESIGNATION BY: 274 (1) SIGNING A WRITTEN AND DATED INSTRUMENT WHICH EXPRESSES 275 MY INTENT TO AMEND OR REVOKE THIS DESIGNATION; 276 (2) PHYSICALLY DESTROYING THIS DESIGNATION THROUGH MY OWN 277 ACTION OR BY THAT OF ANOTHER PERSON IN MY PRESENCE AND UNDER MY 278 DIRECTION; 279 (3) VERBALLY EXPRESSING MY INTENTION TO AMEND OR REVOKE 280 THIS DESIGNATION; OR 281 (4) SIGNING A NEW DESIGNATION THAT IS MATERIALLY DIFFERENT 282 FROM THIS DESIGNATION. 283 284 MY HEALTH CARE SURROGATE’S AUTHORITY BECOMES EFFECTIVE WHEN MY 285 PRIMARY PHYSICIAN DETERMINES THAT I AM UNABLE TO MAKE MY OWN 286 HEALTH CARE DECISIONS UNLESS I INITIAL EITHER OR BOTH OF THE 287 FOLLOWING BOXES: 288 289 IF I INITIAL THIS BOX [....], MY HEALTH CARE SURROGATE’S 290 AUTHORITY TO RECEIVE MY HEALTH INFORMATION TAKES EFFECT 291 IMMEDIATELY. 292 293 IF I INITIAL THIS BOX [....], MY HEALTH CARE SURROGATE’S 294 AUTHORITY TO MAKE HEALTH CARE DECISIONS FOR ME TAKES EFFECT 295 IMMEDIATELY. PURSUANT TO SECTION 765.204(3), FLORIDA STATUTES, 296 ANY INSTRUCTIONS OR HEALTH CARE DECISIONS I MAKE, EITHER 297 VERBALLY OR IN WRITING, WHILE I POSSESS CAPACITY SHALL SUPERSEDE 298 ANY INSTRUCTIONS OR HEALTH CARE DECISIONS MADE BY MY SURROGATE 299 THAT ARE IN MATERIAL CONFLICT WITH THOSE MADE BY ME. 300 301 SIGNATURES: Sign and date the form here: 302 ...(date)... ...(sign your name)... 303 ...(address)... ...(print your name)... 304 ...(city)... ...(state)... 305 306 SIGNATURES OF WITNESSES: 307 First witness Second witness 308 ...(print name)... ...(print name)... 309 ...(address)... ...(address)... 310 ...(city)... ...(state)... ...(city)... ...(state)... 311 ...(signature of witness)... ...(signature of witness)... 312 ...(date)... ...(date)... 313 Section 5. This act shall take effect July 1, 2017.