Florida Senate - 2017 PROPOSED COMMITTEE SUBSTITUTE
Bill No. CS for SB 804
Ì747152"Î747152
576-04079-17
Proposed Committee Substitute by the Committee on Appropriations
(Appropriations Subcommittee on Health and Human Services)
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; directing the Office of Program Policy
43 Analysis and Government Accountability (OPPAGA) to
44 conduct a study of current federal and state efforts
45 on, and available opportunities for, the collecting,
46 sharing, and donating certain electronic health
47 records for the advancement of medical science;
48 requiring OPPAGA to identify available options
49 regarding databases or repositories; directing OPPAGA
50 to identify any existing state or federal legislation
51 or programs that allow such donations and identify the
52 benefits of, and barriers to, establishing such
53 programs in the state; requiring OPPAGA to report its
54 findings and recommendations to the Legislature by a
55 specified date; providing an effective date.
56
57 Be It Enacted by the Legislature of the State of Florida:
58
59 Section 1. Paragraph (e) is added to subsection (6) of
60 section 765.101, Florida Statutes, and subsection (10) of that
61 section is amended, to read:
62 765.101 Definitions.—As used in this chapter:
63 (6) “Health care decision” means:
64 (e) The right of a health care surrogate or proxy to donate
65 the principal’s electronic health records and qualified
66 electronic health records, as defined in s. 408.051, upon the
67 principal’s death to an approved medical or dental school,
68 college, university, hospital, or repository that collects,
69 stores, and shares de-identified electronic health records in
70 the public domain for purposes of educating or developing
71 diagnoses, treatment choices, policies, health care system
72 designs, and innovations in order to improve health outcomes and
73 reduce health care costs. For purposes of this paragraph, the
74 term “approved” means approved by the Department of Health.
75 (10) “Incapacity” or “incompetent” means the patient is
76 physically or mentally unable to communicate a willful and
77 knowing health care decision. For the purposes of making an
78 anatomical gift or donating electronic health records or
79 qualified electronic health records, the term also includes a
80 patient who is deceased.
81 Section 2. Section 765.114, Florida Statutes, is created to
82 read:
83 765.114 Donating electronic health records and qualified
84 electronic health records.—
85 (1) A person may donate all or part of his or her
86 electronic health records or qualified electronic health records
87 by doing any of the following:
88 (a) Signing an electronic health records donor card.
89 (b) Indicating an intent to donate on his or her driver
90 license or identification card issued by the Department of
91 Highway Safety and Motor Vehicles. Revocation, suspension,
92 expiration, or cancellation of the driver license or
93 identification card does not invalidate the intent to donate.
94 (c) Expressing a wish to donate in a living will or other
95 advance directive.
96 (d) Expressing a wish to donate in a will. The donation
97 becomes effective upon the death of the testator without waiting
98 for probate. If the will is not probated or if it is declared
99 invalid for testamentary purposes, the donation is nevertheless
100 valid to the extent that it has been acted upon in good faith.
101 (e) Expressing a wish to donate in a document other than a
102 will. The document must be signed by the donor in the presence
103 of two adult witnesses, who must sign the document in the
104 donor’s presence. If the donor cannot sign, the document may be
105 signed by another person at the donor’s direction and in his or
106 her presence and in the presence of two witnesses, who must sign
107 the document in the donor’s presence. Delivery of the document
108 during the donor’s lifetime is not necessary to make the intent
109 to donate valid. The following form of written document is
110 sufficient for any person to make a donation of electronic
111 health records or qualified electronic health records for the
112 purposes of this part:
113
114 UNIFORM ELECTRONIC HEALTH RECORDS DONOR CARD
115
116 The undersigned hereby makes this health records donation, to
117 take effect on death. The words and marks below indicate my
118 desires:
119 I give:
120 1. .... all electronic health records;
121 2. .... only the following electronic health records:
122 ...[Specify the health records]...
123 for the purpose of medical research or education.
124
125 Signed by the donor and the following witnesses in the presence
126 of each other:
127
128 ...(Signature of donor)... ...(Date of birth of donor)...
129 ...(Date signed)... ...(City and State)...
130
131 ...(Witness)... ...(Witness)...
132 ...(Address)... ...(Address)...
133
134 (2) The de-identified electronic health records or
135 qualified electronic health records may be given to one or more
136 donees that are accredited medical or dental schools, colleges,
137 universities, hospitals, or repositories for the purposes of
138 educating or developing diagnoses, treatment choices, policies,
139 health care system designs, and innovations to improve health
140 outcomes and reduce health care costs. Electronic health records
141 or qualified electronic health records with a donor’s
142 identifying information may be given to a donee upon written
143 consent of the donor. The donees must be approved by the
144 Department of Health and may be specified by name.
145 (3) Any electronic health records or qualified electronic
146 health records donated by a health care surrogate or proxy
147 designated by the decedent pursuant to part II of this chapter
148 must be de-identified, unless the donee provides written consent
149 stating that his or her identifying information may be included
150 with such records, and such donation must be made by a document
151 signed by that person or made by that person’s witnessed
152 telephonic discussion, telegraphic message, or other recorded
153 message.
154 (4) A donor may amend the terms of or revoke a donation of
155 electronic health records or qualified electronic health records
156 by any of the following means:
157 (a) The execution and delivery to the donee of a signed
158 statement witnessed by at least two adults, one of whom is a
159 disinterested witness.
160 (b) An oral statement that is made in the presence of two
161 adult witnesses, one of whom is not a family member, and
162 communicated to the donor’s family or attorney or to the donee.
163 An oral statement is effective only if the medical or dental
164 school, college, university, hospital, or repository has actual
165 notice of the oral amendment or revocation.
166 (c) An oral statement made during a terminal illness or
167 injury addressed to the primary physician, who must communicate
168 the revocation of the gift to the medical or dental school,
169 college, university, hospital, or repository.
170 (d) A signed document found on or about the donor’s person.
171 (e) A later-executed document of donation which amends or
172 revokes a previous health records donation or portion of a
173 health records donation, either expressly or by inconsistency.
174 (f) The destruction or cancellation, with the intent to
175 revoke the donation, of the document that indicates the intent
176 to donate or the destruction or cancellation of that portion of
177 the document which indicates the intent to donate.
178 Section 3. Section 765.1141, Florida Statutes, is created
179 to read:
180 765.1141 Electronic health records donations as part of
181 driver license or identification card process.—
182 (1) The Agency for Health Care Administration and the
183 Department of Highway Safety and Motor Vehicles shall develop
184 and implement a program encouraging and authorizing persons to
185 donate electronic health records and qualified electronic health
186 records, as defined in s. 408.051, as a part of the process of
187 issuing and renewing identification cards and driver licenses.
188 The donor registration card distributed by the department must
189 include the information and signatures required in the uniform
190 electronic health records donor card under s. 765.114(1)(e) and
191 such additional information as determined necessary by the
192 department. The department shall also develop and implement a
193 program to identify donors which includes notations on
194 identification cards and driver licenses to clearly indicate the
195 individual’s intent to donate his or her electronic health
196 records. The agency shall provide the necessary supplies and
197 forms using appropriated funds or contributions from interested
198 voluntary, nonprofit organizations. The department shall provide
199 the necessary recordkeeping system using appropriated funds. The
200 department and the agency do not incur liability in connection
201 with the performance of any act authorized in this section.
202 (2) The department shall maintain an integrated link on its
203 website referring a visitor renewing an identification card or a
204 driver license or conducting other business to an electronic
205 health records repository if available.
206 (3) The department, after consultation with and concurrence
207 by the agency, shall adopt rules to implement this section
208 pursuant to chapter 120.
209 Section 4. Section 765.203, Florida Statutes, is amended to
210 read:
211 765.203 Suggested form of designation.—A written
212 designation of a health care surrogate executed pursuant to this
213 chapter may, but need not be, in the following form:
214
215 DESIGNATION OF HEALTH CARE SURROGATE
216
217 I, ...(name)..., designate as my health care surrogate under s.
218 765.202, Florida Statutes:
219
220 Name: ...(name of health care surrogate)...
221 Address: ...(address)...
222 Phone: ...(telephone)...
223
224 If my health care surrogate is not willing, able, or reasonably
225 available to perform his or her duties, I designate as my
226 alternate health care surrogate:
227
228 Name: ...(name of alternate health care surrogate)...
229 Address: ...(address)...
230 Phone: ...(telephone)...
231
232 INSTRUCTIONS FOR HEALTH CARE
233
234 I authorize my health care surrogate to:
235 ...(Initial here)... Receive any of my health information,
236 whether oral or recorded in any form or medium, that:
237 1. Is created or received by a health care provider, health
238 care facility, health plan, public health authority, employer,
239 life insurer, school or university, or health care
240 clearinghouse; and
241 2. Relates to my past, present, or future physical or
242 mental health or condition; the provision of health care to me;
243 or the past, present, or future payment for the provision of
244 health care to me.
245 I further authorize my health care surrogate to:
246 ...(Initial here)... Make all health care decisions for me,
247 which means he or she has the authority to:
248 1. Provide informed consent, refusal of consent, or
249 withdrawal of consent to any and all of my health care,
250 including life-prolonging procedures.
251 2. Apply on my behalf for private, public, government, or
252 veterans’ benefits to defray the cost of health care.
253 3. Access my health information reasonably necessary for
254 the health care surrogate to make decisions involving my health
255 care and to apply for benefits for me.
256 4. Decide to make an anatomical gift pursuant to part V of
257 chapter 765, Florida Statutes.
258 5. Donate my electronic health records and qualified
259 electronic health records, as defined in s. 408.051, Florida
260 Statutes, to one or more accredited medical or dental schools,
261 colleges, universities, hospitals, or repositories, approved by
262 the Department of Health, to share my de-identified health
263 records for purposes of developing diagnoses, treatment choices,
264 policies, health care system designs, and innovations to improve
265 health outcomes and reduce health care costs.
266 ...(Initial here)... Specific instructions and
267 restrictions: ..................................................
268 ................................................................
269 ................................................................
270
271 While I have decisionmaking capacity, my wishes are controlling
272 and my physicians and health care providers must clearly
273 communicate to me the treatment plan or any change to the
274 treatment plan prior to its implementation.
275
276 To the extent I am capable of understanding, my health care
277 surrogate shall keep me reasonably informed of all decisions
278 that he or she has made on my behalf and matters concerning me.
279
280 THIS HEALTH CARE SURROGATE DESIGNATION IS NOT AFFECTED BY MY
281 SUBSEQUENT INCAPACITY EXCEPT AS PROVIDED IN CHAPTER 765, FLORIDA
282 STATUTES.
283
284 PURSUANT TO SECTION 765.104, FLORIDA STATUTES, I UNDERSTAND THAT
285 I MAY, AT ANY TIME WHILE I RETAIN MY CAPACITY, REVOKE OR AMEND
286 THIS DESIGNATION BY:
287 (1) SIGNING A WRITTEN AND DATED INSTRUMENT WHICH EXPRESSES
288 MY INTENT TO AMEND OR REVOKE THIS DESIGNATION;
289 (2) PHYSICALLY DESTROYING THIS DESIGNATION THROUGH MY OWN
290 ACTION OR BY THAT OF ANOTHER PERSON IN MY PRESENCE AND UNDER MY
291 DIRECTION;
292 (3) VERBALLY EXPRESSING MY INTENTION TO AMEND OR REVOKE
293 THIS DESIGNATION; OR
294 (4) SIGNING A NEW DESIGNATION THAT IS MATERIALLY DIFFERENT
295 FROM THIS DESIGNATION.
296
297 MY HEALTH CARE SURROGATE’S AUTHORITY BECOMES EFFECTIVE WHEN MY
298 PRIMARY PHYSICIAN DETERMINES THAT I AM UNABLE TO MAKE MY OWN
299 HEALTH CARE DECISIONS UNLESS I INITIAL EITHER OR BOTH OF THE
300 FOLLOWING BOXES:
301
302 IF I INITIAL THIS BOX [....], MY HEALTH CARE SURROGATE’S
303 AUTHORITY TO RECEIVE MY HEALTH INFORMATION TAKES EFFECT
304 IMMEDIATELY.
305
306 IF I INITIAL THIS BOX [....], MY HEALTH CARE SURROGATE’S
307 AUTHORITY TO MAKE HEALTH CARE DECISIONS FOR ME TAKES EFFECT
308 IMMEDIATELY. PURSUANT TO SECTION 765.204(3), FLORIDA STATUTES,
309 ANY INSTRUCTIONS OR HEALTH CARE DECISIONS I MAKE, EITHER
310 VERBALLY OR IN WRITING, WHILE I POSSESS CAPACITY SHALL SUPERSEDE
311 ANY INSTRUCTIONS OR HEALTH CARE DECISIONS MADE BY MY SURROGATE
312 THAT ARE IN MATERIAL CONFLICT WITH THOSE MADE BY ME.
313
314 SIGNATURES: Sign and date the form here:
315 ...(date)... ...(sign your name)...
316 ...(address)... ...(print your name)...
317 ...(city)... ...(state)...
318
319 SIGNATURES OF WITNESSES:
320 First witness Second witness
321 ...(print name)... ...(print name)...
322 ...(address)... ...(address)...
323 ...(city)... ...(state)... ...(city)... ...(state)...
324 ...(signature of witness)... ...(signature of witness)...
325 ...(date)... ...(date)...
326 Section 5. The Office of Program Policy Analysis and
327 Government Accountability (OPPAGA) shall conduct a study of
328 current federal and state efforts on, and available
329 opportunities for, the collecting, sharing, and donating of
330 electronic health records before or after a patient’s death for
331 the advancement of medical science. OPPAGA shall identify
332 available options regarding databases or repositories that will
333 allow for the collection and distribution of donated electronic
334 health records for the purpose of advancing the current state of
335 medicine, including any existing public or private databases or
336 repositories and any available opportunities for public or
337 private funding to establish such a database or repository.
338 OPPAGA shall also study the donation of electronic health
339 records to identify any existing state or federal legislation or
340 programs that allow such donations and to identify the benefits
341 of, and barriers to, establishing such programs in the state of
342 Florida. OPPAGA shall report its findings and recommendations
343 for an electronic health records donation process to the
344 President of the Senate and the Speaker of the House of
345 Representatives no later than December 1, 2017.
346 Section 6. This act shall take effect July 1, 2017.