HB 0399 2004
1	A bill to be entitled
2	An act relating to public records; exempting from public
3	records requirements information and records reported to
4	the Department of Health under the electronic monitoring
5	system for prescription of controlled substances listed in
6	Schedules II-IV; authorizing certain persons and entities
7	access to patient-identifying and practitioner-identifying
8	information; providing guidelines for the use of such
9	information and penalties for violations; providing for
10	future legislative review and repeal; providing a finding
11	of public necessity; providing a contingent effective
12	date.
13
14	Be It Enacted by the Legislature of the State of Florida:
15
16	Section 1. (1)(a) A patient's personal identifying
17	information contained in any record reported under s. 893.055,
18	Florida Statutes, is confidential and exempt from the provisions
19	of s. 119.07(1), Florida Statutes, and s. 24(a), Art. I of the
20	State Constitution.
21	(b) This section is subject to the Open Government Sunset
22	Review Act of 1995 in accordance with s. 119.15, Florida
23	Statutes, and shall stand repealed on October 2, 2010, unless
24	reviewed and saved from repeal through reenactment by the
25	Legislature.
26	(2) The Department of Health may disclose a patient's or
27	practitioner's identity in the information or records reported
28	under s. 893.055, Florida Statutes, whose identity is otherwise
29	confidential and exempt from the provisions of s. 119.07(1),
30	Florida Statutes, and s. 24(a), Art. I of the State
31	Constitution, to the following:
32	(a) A practitioner defined under chapter 893, Florida
33	Statutes, who requests information and certifies that the
34	information is necessary to provide medical treatment in
35	accordance with s. 893.05, Florida Statutes, to a current
36	patient, subject to the patient's written consent. The
37	practitioner may designate one person in his or her office to
38	access the information and records reported under s. 893.055,
39	Florida Statutes, on the practitioner's patients and provide
40	information to the practitioner as directed, subject to the
41	patient's written consent.
42	(b) A pharmacist licensed in this state, or a pharmacy
43	intern or pharmacy technician designated by the pharmacist, who
44	requests information and certifies that the requested
45	information is to be used to dispense controlled substances in
46	accordance with s. 893.04, Florida Statutes, to a current
47	patient.
48	(c) A criminal justice agency defined under s. 119.011,
49	Florida Statutes, which enforces the laws of this state or the
50	United States relating to drugs and which is engaged in a
51	specific investigation involving a violation of law. Any member
52	of a criminal justice agency receiving the information as
53	authorized in this section shall avoid unauthorized use or
54	dissemination thereof. Such member receiving the information may
55	disclose its contents to other persons to the extent that such
56	disclosure is appropriate to the proper performance of the
57	official duties of the member making or the person receiving the
58	disclosure.
59	(d) An employee or agent of the Department of Health who
60	is involved in a specific investigation involving a violation of
61	the chapter regulating the alleged violator, the rules of the
62	Department of Health, or the rules of a board regulating the
63	alleged violator.
64	(e) An employee of the Agency for Health Care
65	Administration who is involved in an investigation related to
66	the agency's responsibility to control fraud and abuse in the
67	Medicaid program.
68	(3)(a) A person who obtains information under this section
69	may not use the information to his or her own personal advantage
70	or reveal any information obtained in the enforcement of law
71	except in a prosecution or administrative hearing for a
72	violation of state or federal law or, if applicable, to provide
73	medical treatment in accordance with s. 893.05, Florida
74	Statutes, to a current patient or to dispense controlled
75	substances in accordance with s. 893.04, Florida Statutes, to a
76	current patient, or to the patient for verifying the accuracy of
77	such information.
78	(b) Any person who knowingly violates this subsection
79	commits a felony of the third degree, punishable as provided in
80	s. 775.082 or s. 775.083, Florida Statutes.
81	(4) A practitioner or pharmacist authorized to obtain
82	information under this section is not liable for accessing or
83	failing to access such information.
84	(5) A practitioner, pharmacist, or other person or agency
85	that obtains information reported under s. 893.055, Florida
86	Statutes, must maintain the confidentiality of such information
87	pursuant to ss. 456.057 and 465.017, Florida Statutes, or as
88	otherwise required by law.
89	Section 2. The Legislature finds that it is a public
90	necessity that personal identifying information reported to the
91	Department of Health under s. 893.055, Florida Statutes, be held
92	confidential and exempt from disclosure because doing so will
93	facilitate efforts to maintain compliance with the state's drug
94	laws not only by patients through accurate and timely reporting
95	by health care practitioners and pharmacists of potential drug
96	diversion without compromising a patient's privacy, with certain
97	exceptions, but also by persons authorized to prescribe or
98	dispense controlled substances through oversight review and
99	investigation of improper prescribing and dispensing practices.
100	The exemption for a patient's identity in the information or
101	records reported under s. 893.055, Florida Statutes, facilitates
102	the sharing of information between health care practitioners and
103	pharmacists so that the practitioners and pharmacists may
104	appropriately identify and evaluate a patient's risk for drug
105	diversion and the resulting abuse of controlled substances
106	without compromising a patient's privacy. The Legislature
107	further finds that the exemption for records identifying a
108	patient or practitioner within information or records reported
109	to the Department of Health is a public necessity to protect
110	health-related information of a sensitive and personal nature.
111	Matters of personal health are traditionally private and
112	confidential concerns between a patient and a health care
113	provider. The private and confidential nature of personal health
114	matters pervades both the public and private health care
115	sectors. For these reasons, an individual's expectation of a
116	right to privacy in all matters regarding his or her personal
117	health necessitates such exemption. Information relating to
118	practitioners prescribing or dispensing controlled substances
119	needs to be kept confidential for criminal justice agencies and
120	regulatory agencies and departments to properly investigate
121	potentially improper prescribing or dispensing practices that
122	indicate drug diversion by such practitioners or contributing to
123	drug diversion by a patient without compromising the livelihood
124	of such practitioner with unsubstantiated charges of improper
125	dispensing or prescribing practice. For these reasons, a
126	practitioner's expectation of a right to privacy in the review
127	and investigation of unsubstantiated charges affecting his or
128	her livelihood necessitates such exemption.
129	Section 3. This act shall take effect July 1, 2005, if
130	House Bill 397 or similar legislation establishing an electronic
131	system to monitor the prescribing of controlled substances is
132	adopted in the same legislative session or an extension thereof
133	and becomes law.