Florida Senate - 2016                      CS for CS for SB 1278
       
       
        
       By the Committees on Governmental Oversight and Accountability;
       and Judiciary; and Senator Ring
       
       585-02889-16                                          20161278c2
    1                        A bill to be entitled                      
    2         An act relating to public records; amending s.
    3         394.4615, F.S.; providing an exemption from public
    4         records requirements for pleadings, orders, and
    5         related records, and personal identifying information
    6         on a docket, held pursuant to part I of ch. 394, F.S.,
    7         relating to mental health services; authorizing the
    8         clerk of the court to disclose the records and
    9         information to specified persons upon request;
   10         providing for retroactive application; requiring a
   11         person, an agency, or an entity that receives certain
   12         information to maintain it as confidential and exempt;
   13         providing a statement of public necessity; providing
   14         an effective date.
   15          
   16  Be It Enacted by the Legislature of the State of Florida:
   17  
   18         Section 1. Section 394.4615, Florida Statutes, is amended
   19  to read:
   20         394.4615 Clinical records; Confidentiality.—
   21         (1) CLINICAL RECORDS.—
   22         (a)(1) A clinical record shall be maintained for each
   23  patient. The record shall include data pertaining to admission
   24  and such other information as may be required under rules of the
   25  department. A clinical record is confidential and exempt from
   26  the provisions of s. 119.07(1). Unless waived by express and
   27  informed consent, by the patient or the patient’s guardian or
   28  guardian advocate or, if the patient is deceased, by the
   29  patient’s personal representative or the family member who
   30  stands next in line of intestate succession, the confidential
   31  status of the clinical record shall not be lost by either
   32  authorized or unauthorized disclosure to any person,
   33  organization, or agency.
   34         (b)(2) The clinical record shall be released when:
   35         1.(a) The patient or the patient’s guardian authorizes the
   36  release. The guardian or guardian advocate shall be provided
   37  access to the appropriate clinical records of the patient. The
   38  patient or the patient’s guardian or guardian advocate may
   39  authorize the release of information and clinical records to
   40  appropriate persons to ensure the continuity of the patient’s
   41  health care or mental health care.
   42         2.(b) The patient is represented by counsel and the records
   43  are needed by the patient’s counsel for adequate representation.
   44         3.(c) The court orders such release. In determining whether
   45  there is good cause for disclosure, the court shall weigh the
   46  need for the information to be disclosed against the possible
   47  harm of disclosure to the person to whom such information
   48  pertains.
   49         4.(d) The patient is committed to, or is to be returned to,
   50  the Department of Corrections from the Department of Children
   51  and Families, and the Department of Corrections requests such
   52  records. These records shall be furnished without charge to the
   53  Department of Corrections.
   54         (c)(3) Information from the clinical record may be released
   55  in the following circumstances:
   56         1.(a) When a patient has declared an intention to harm
   57  other persons. When such declaration has been made, the
   58  administrator may authorize the release of sufficient
   59  information to provide adequate warning to the person threatened
   60  with harm by the patient.
   61         2.(b) When the administrator of the facility or secretary
   62  of the department deems release to a qualified researcher as
   63  defined in administrative rule, an aftercare treatment provider,
   64  or an employee or agent of the department is necessary for
   65  treatment of the patient, maintenance of adequate records,
   66  compilation of treatment data, aftercare planning, or evaluation
   67  of programs.
   68  
   69  For the purpose of determining whether a person meets the
   70  criteria for involuntary outpatient placement or for preparing
   71  the proposed treatment plan pursuant to s. 394.4655, the
   72  clinical record may be released to the state attorney, the
   73  public defender or the patient’s private legal counsel, the
   74  court, and to the appropriate mental health professionals,
   75  including the service provider identified in s.
   76  394.4655(6)(b)2., in accordance with state and federal law.
   77         (d)(4) Information from clinical records may be used for
   78  statistical and research purposes if the information is
   79  abstracted in such a way as to protect the identity of
   80  individuals.
   81         (e)(5) Information from clinical records may be used by the
   82  Agency for Health Care Administration, the department, and the
   83  Florida advocacy councils for the purpose of monitoring facility
   84  activity and complaints concerning facilities.
   85         (f)(6) Clinical records relating to a Medicaid recipient
   86  shall be furnished to the Medicaid Fraud Control Unit in the
   87  Department of Legal Affairs, upon request.
   88         (g)(7) Any person, agency, or entity receiving information
   89  pursuant to this subsection section shall maintain such
   90  information as confidential and exempt from the provisions of s.
   91  119.07(1).
   92         (h)(8) Any facility or private mental health practitioner
   93  who acts in good faith in releasing information pursuant to this
   94  subsection section is not subject to civil or criminal liability
   95  for such release.
   96         (i)(9)Nothing in This subsection does not section is
   97  intended to prohibit a the parent or next of kin of a person who
   98  is held in or treated under a mental health facility or program
   99  from requesting and receiving information limited to a summary
  100  of that person’s treatment plan and current physical and mental
  101  condition. Release of such information shall be in accordance
  102  with the code of ethics of the profession involved.
  103         (j)(10) Patients shall have reasonable access to their
  104  clinical records, unless such access is determined by the
  105  patient’s physician to be harmful to the patient. If the
  106  patient’s right to inspect his or her clinical record is
  107  restricted by the facility, written notice of such restriction
  108  shall be given to the patient and the patient’s guardian,
  109  guardian advocate, attorney, and representative. In addition,
  110  the restriction shall be recorded in the clinical record,
  111  together with the reasons for it. The restriction of a patient’s
  112  right to inspect his or her clinical record shall expire after 7
  113  days but may be renewed, after review, for subsequent 7-day
  114  periods.
  115         (k)(11)A Any person who fraudulently alters, defaces, or
  116  falsifies the clinical record of a any person receiving mental
  117  health services in a facility subject to this part, or causes or
  118  procures any of these offenses to be committed, commits a
  119  misdemeanor of the second degree, punishable as provided in s.
  120  775.082 or s. 775.083.
  121         (2) COURT RECORDS.—
  122         (a) All pleadings, orders, and related records, and
  123  personal identifying information on a docket, held pursuant to
  124  this part are confidential and exempt from s. 119.07(1) and s.
  125  24(a), Art. I of the State Constitution.
  126         (b)Pleadings, orders, and related records, and personal
  127  identifying information on a docket, made confidential and
  128  exempt by this subsection may be disclosed by the clerk of the
  129  court, upon request, to:
  130         1. The petitioner.
  131         2. The petitioner’s attorney.
  132         3. The respondent.
  133         4. The respondent’s attorney.
  134         5. The respondent’s guardian or guardian advocate, if
  135  applicable.
  136         6. In the case of a minor respondent, the respondent’s
  137  parent, guardian, legal custodian, or guardian advocate.
  138         7. The respondent’s treating health care practitioner.
  139         8. The respondent’s health care surrogate or proxy.
  140         9. The respondent’s patient representative.
  141         10. A person or an entity authorized to view records and
  142  who has obtained a court order finding that there is good cause
  143  to release the records. In determining whether there is good
  144  cause for disclosure, the court shall weigh the need for the
  145  information to be disclosed against the possible harm of
  146  disclosure to the respondent.
  147         11. An agency or a person authorized to receive clinical
  148  records pursuant to paragraphs (1)(b) and (1)(c).
  149         (c) The exemption under this subsection applies
  150  retroactively.
  151         (d) A person, an agency, or an entity receiving information
  152  pursuant to this subsection shall maintain such information as
  153  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
  154  of the State Constitution.
  155         Section 2. The Legislature finds that it is a public
  156  necessity to make confidential and exempt from s. 119.07(1),
  157  Florida Statutes, and s. 24(a), Article I of the State
  158  Constitution, all pleadings, orders, and related records, and
  159  personal identifying information on a docket, held pursuant to
  160  part I of chapter 394, Florida Statutes, in order to preserve
  161  the privacy of the individual who is or who is alleged to have a
  162  mental illness. An individual’s personal health and mental
  163  health are intensely private matters. Making the pleadings,
  164  orders, and related records, and personal identifying
  165  information on a docket, of an individual who is subject to part
  166  I of chapter 394, Florida Statutes, confidential and exempt from
  167  disclosure will protect information of a sensitive personal
  168  nature, the release of which could cause unwarranted damage to
  169  the individual’s reputation. Publication of personal identifying
  170  information of such an individual on a physical or virtual
  171  docket, even if no other records were published, would defeat
  172  the purpose and protections afforded by this exemption because a
  173  record of the individual’s mental health proceedings would be
  174  available to the public. The Legislature further finds that the
  175  public disclosure of such pleadings, orders, and related
  176  records, and personal identifying information on a docket, would
  177  produce undue harm to an individual who has a mental illness or
  178  is alleged to have a mental illness. Furthermore, the knowledge
  179  that sensitive personal information is subject to public
  180  dissemination would have a chilling effect on the willingness of
  181  individuals to seek or comply with mental health treatment.
  182         Section 3. This act shall take effect July 1, 2016.