HB 1097

1	A bill to be entitled
2	An act relating to electronic health records; amending s.
3	395.3025, F.S.; expanding access to a patient's health
4	records to facilitate the electronic exchange of data
5	between certain health care facility personnel,
6	practitioners, and providers and attending physicians;
7	creating s. 408.051, F.S.; creating the "Florida
8	Electronic Health Records Exchange Act"; providing
9	definitions; authorizing the release of certain health
10	records under emergency medical conditions without patient
11	consent; providing for immunity from civil liability;
12	providing duties of the agency with regard to the
13	availability of specified information on the agency's
14	Internet website; requiring the agency to develop and
15	implement a universal patient authorization form in paper
16	and electronic formats for the release of certain health
17	records; providing procedures for use of the form;
18	providing penalties; providing for certain compensation
19	and attorney's fees and costs; creating s. 408.0512, F.S.;
20	requiring the Agency for Health Care Administration to
21	operate an electronic medical records system adoption loan
22	program, subject to specific appropriation; providing
23	eligibility criteria; prohibiting the agency from
24	providing loans to physicians or businesses that have
25	violated certain provisions of law; providing for uses of
26	the loan; providing guidelines for distribution of funds
27	by the agency; requiring the agency to develop terms and
28	conditions for the loan program; requiring physicians and
29	businesses to provide additional security agreements under
30	certain circumstances; providing for payments to be
31	deposited in the agency's Administrative Trust Fund;
32	establishing procedures for managing cases of default;
33	amending s. 483.181, F.S.; expanding access to laboratory
34	reports to facilitate the exchange of data between certain
35	health care practitioners and providers; providing an
36	effective date.
37
38	WHEREAS, the use of electronic health information
39	technology has been proven to benefit consumers by increasing
40	the quality and efficiency of health care delivery throughout
41	the state, and
42	WHEREAS, clear and concise standards for sharing privacy-
43	protected medical information among authorized health care
44	providers will enable providers to have cost-effective access to
45	the medical information needed to make sound decisions about
46	health care, and
47	WHEREAS, maintaining the privacy and security of
48	identifiable health records is essential to the adoption of
49	procedures for sharing of electronic health records among health
50	care providers involved in the treatment of patients, NOW,
51	THEREFORE,
52
53	Be It Enacted by the Legislature of the State of Florida:
54
55	Section 1.  Subsection (4) of section 395.3025, Florida
56	Statutes, is amended to read:
57	395.3025  Patient and personnel records; copies;
58	examination.--
59	(4)  Patient records are confidential and must not be
60	disclosed without the consent of the patient or his or her legal
61	representative person to whom they pertain, but appropriate
62	disclosure may be made without such consent to:
63	(a)  Licensed facility personnel, and attending physicians,
64	or other health care practitioners and providers currently
65	involved in the care or treatment of the patient for use only in
66	connection with the treatment of the patient.
67	(b)  Licensed facility personnel only for administrative
68	purposes or risk management and quality assurance functions.
69	(c)  The agency, for purposes of health care cost
70	containment.
71	(d)  In any civil or criminal action, unless otherwise
72	prohibited by law, upon the issuance of a subpoena from a court
73	of competent jurisdiction and proper notice by the party seeking
74	such records to the patient or his or her legal representative.
75	(e)  The agency upon subpoena issued pursuant to s.
76	456.071, but the records obtained thereby must be used solely
77	for the purpose of the agency and the appropriate professional
78	board in its investigation, prosecution, and appeal of
79	disciplinary proceedings. If the agency requests copies of the
80	records, the facility shall charge no more than its actual
81	copying costs, including reasonable staff time. The records must
82	be sealed and must not be available to the public pursuant to s.
83	119.07(1) or any other statute providing access to records, nor
84	may they be available to the public as part of the record of
85	investigation for and prosecution in disciplinary proceedings
86	made available to the public by the agency or the appropriate
87	regulatory board. However, the agency must make available, upon
88	written request by a practitioner against whom probable cause
89	has been found, any such records that form the basis of the
90	determination of probable cause.
91	(f)  The Department of Health or its agent, for the purpose
92	of establishing and maintaining a trauma registry and for the
93	purpose of ensuring that hospitals and trauma centers are in
94	compliance with the standards and rules established under ss.
95	395.401, 395.4015, 395.4025, 395.404, 395.4045, and 395.405, and
96	for the purpose of monitoring patient outcome at hospitals and
97	trauma centers that provide trauma care services.
98	(g)  The Department of Children and Family Services or its
99	agent, for the purpose of investigations of cases of abuse,
100	neglect, or exploitation of children or vulnerable adults.
101	(h)  The State Long-Term Care Ombudsman Council and the
102	local long-term care ombudsman councils, with respect to the
103	records of a patient who has been admitted from a nursing home
104	or long-term care facility, when the councils are conducting an
105	investigation involving the patient as authorized under part II
106	of chapter 400, upon presentation of identification as a council
107	member by the person making the request. Disclosure under this
108	paragraph shall only be made after a competent patient or the
109	patient's representative has been advised that disclosure may be
110	made and the patient has not objected.
111	(i)  A local trauma agency or a regional trauma agency that
112	performs quality assurance activities, or a panel or committee
113	assembled to assist a local trauma agency or a regional trauma
114	agency in performing quality assurance activities. Patient
115	records obtained under this paragraph are confidential and
116	exempt from s. 119.07(1) and s. 24(a), Art. I of the State
117	Constitution.
118	(j)  Organ procurement organizations, tissue banks, and eye
119	banks required to conduct death records reviews pursuant to s.
120	395.2050.
121	(k)  The Medicaid Fraud Control Unit in the Department of
122	Legal Affairs pursuant to s. 409.920.
123	(l)  The Department of Financial Services, or an agent,
124	employee, or independent contractor of the department who is
125	auditing for unclaimed property pursuant to chapter 717.
126	(m)  A regional poison control center for purposes of
127	treating a poison episode under evaluation, case management of
128	poison cases, or compliance with data collection and reporting
129	requirements of s. 395.1027 and the professional organization
130	that certifies poison control centers in accordance with federal
131	law.
132	Section 2.  Section 408.051, Florida Statutes, is created
133	to read:
134	408.051  Florida Electronic Health Records Exchange Act.--
135	(1)  SHORT TITLE.--This section may be cited as the
136	"Florida Electronic Health Records Exchange Act."
137	(2)  DEFINITIONS.--As used in this section, the term:
138	(a)  "Electronic health record" means a record of a
139	person's medical treatment that is created by a licensed health
140	care provider and stored in an interoperable and accessible
141	digital format.
142	(b)  "Electronic health records system" means an
143	application environment consisting of at least two of the
144	following components: a clinical data repository, clinical
145	decision support, a controlled medical vocabulary, a
146	computerized provider order entry, a pharmacy, or clinical
147	documentation. The application must be used by health care
148	practitioners to document, monitor, and manage health care
149	delivery within a health care delivery system and must be
150	capable of interoperability within a health information
151	exchange.
152	(c)  "Health information exchange" means an electronic
153	health records system used to acquire, process, and transmit
154	electronic health records that can be shared in real time among
155	authorized health care providers, health care facilities, health
156	insurers, and other recipients, as authorized by law, to
157	facilitate the provision of health care services.
158	(d)  "Health record" means any information, recorded in any
159	form or medium, that relates to the past, present, or future
160	health of an individual for the primary purpose of providing
161	health care and health-related services.
162	(e)  "Identifiable health record" means any health record
163	that identifies the patient or with respect to which there is a
164	reasonable basis to believe the information can be used to
165	identify the patient.
166	(f)  "Patient" means an individual who has sought, is
167	seeking, is undergoing, or has undergone care or treatment in a
168	health care facility or by a health care provider.
169	(g)  "Patient representative" means a parent of a minor
170	patient, a court-appointed guardian for the patient, a health
171	care surrogate, or a person holding a power of attorney or
172	notarized consent appropriately executed by the patient granting
173	permission to a health care facility or health care provider to
174	disclose the patient's health care information to that person.
175	In the case of a deceased patient, the term also means the
176	personal representative of the estate of the deceased patient;
177	the deceased patient's surviving spouse, surviving parent, or
178	surviving adult child; the parent or guardian of a surviving
179	minor child of the deceased patient; or the attorney for any
180	such person.
181	(3)  EMERGENCY RELEASE OF IDENTIFIABLE HEALTH RECORD.--A
182	health care provider may release or access an identifiable
183	health record of a patient without the patient's consent for use
184	in the treatment of the patient for an emergency medical
185	condition, as defined in s. 395.002(8), when the health care
186	provider is unable to obtain the patient's consent due to the
187	patient's condition or the nature of the situation requiring
188	immediate medical attention. A health care provider who in good
189	faith releases or accesses an identifiable health record of a
190	patient in any form or medium under this section shall be immune
191	from civil liability for accessing or releasing an identifiable
192	health record.
193	(4)  UNIVERSAL PATIENT AUTHORIZATION FORM.--
194	(a)  By July 1, 2010, the agency shall develop forms in
195	both paper and electronic formats that may be used by a health
196	care provider to document patient authorization for the use or
197	release, in any form or medium, of an identifiable health
198	record.
199	(b)  The agency shall adopt by rule the authorization form
200	and accompanying instructions and make the authorization form
201	available on the agency's website, pursuant to s. 408.05.
202	(c)  A health care provider receiving an authorization form
203	containing a request for the release of an identifiable health
204	record shall accept the form as a valid authorization to release
205	an identifiable health record. A health care provider may elect
206	to accept the authorization form in either electronic or paper
207	format or both. The individual or entity that submits the
208	authorization form containing a request for the release of an
209	identifiable health record shall determine which format is
210	accepted by the health care provider prior to submitting the
211	form.
212	(d)  An individual or entity that submits a request for an
213	identifiable health record is not required under this section to
214	use the authorization form adopted and distributed by the
215	agency.
216	(e)  The exchange by a health care provider of an
217	identifiable health record upon receipt of an authorization form
218	completed and submitted in accordance with agency instructions
219	creates a rebuttable presumption that the release of the
220	identifiable health record was appropriate. A health care
221	provider that releases an identifiable health record in reliance
222	on the information provided to the health care provider on a
223	properly completed authorization form does not violate any right
224	of confidentiality and is immune from liability under this
225	section.
226	(f)  A health care provider that exchanges an identifiable
227	health record upon receipt of an authorization form shall not be
228	deemed to have violated or waived any privilege protected under
229	the statutory or common law of this state.
230	(5)  PENALTIES.--A person who does any of the following may
231	be liable to the patient or a health care provider that has
232	released an identifiable health record in reliance on an
233	authorization form presented to the health care provider by the
234	person for compensatory damages caused by an unauthorized
235	release, plus reasonable attorney's fees and costs:
236	(a)  Forges a signature on an authorization form or
237	materially alters the authorization form of another person
238	without the person's authorization; or
239	(b)  Obtains an authorization form or an identifiable
240	health record of another person under false pretenses.
241	Section 3.  Section 408.0512, Florida Statutes, is created
242	to read:
243	408.0512  Electronic medical records system adoption loan
244	program.--
245	(1)  Subject to a specific appropriation, the agency shall
246	operate an electronic medical records system adoption loan
247	program for the purpose of providing a one-time, no-interest
248	loan to eligible physicians licensed under chapter 458 or
249	chapter 459 or to an eligible business entity whose shareholders
250	are licensed under chapter 458 or chapter 459 for the initial
251	costs of implementing an electronic medical records system.
252	(2)  In order to be eligible for a loan under this section,
253	each physician must demonstrate that he or she has practiced
254	continuously within the state for the previous 3 years.
255	(3)  The agency may not provide a loan to a physician who
256	has or a business entity whose physician has:
257	(a)  Been found guilty of a violation of s. 456.072(1) or
258	been disciplined under the applicable licensing chapter in the
259	previous 5 years.
260	(b)  Been found guilty of or entered a plea of guilty or
261	nolo contendere to a violation of s. 409.920 or s. 409.9201.
262	(c)  Been sanctioned pursuant to s. 409.913 for fraud or
263	abuse.
264	(4)  A loan may be provided to an eligible physician or
265	business entity in a lump-sum amount to pay for the costs of
266	purchasing hardware and software, subscription services,
267	professional consultation, and staff training. The agency shall
268	provide guidance to loan recipients by providing, at a minimum,
269	a list of electronic medical records systems recognized or
270	certified by national standards-setting entities as capable of
271	being used to communicate with a health information exchange.
272	(5)  The agency shall distribute a minimum of 25 percent of
273	funds appropriated to this program to physicians or business
274	entities operating within a rural county as defined in s.
275	288.106(1)(r).
276	(6)  The agency shall, by rule, develop standard terms and
277	conditions for use in the loan program. At a minimum, these
278	terms and conditions shall require:
279	(a)  Loan repayment by the physician or business entity
280	within a reasonable period of time, which may not be longer than
281	72 months after the funding of the loan.
282	(b)  Equal periodic payments that commence within 3 months
283	after the funding of the loan.
284	(c)  The eligible physician or business entity to execute a
285	promissory note and a security agreement in favor of the state.
286	The security agreement shall be a purchase-money security
287	interest pledging as collateral for the loan the specific
288	hardware and software purchased with the loan proceeds. The
289	agency shall prepare and record a financing statement under
290	chapter 679. The physician or business entity shall be
291	responsible for paying the cost of recording the financing
292	statement. The security agreement shall further require that the
293	physician or business entity pay all collection costs, including
294	attorney's fees.
295	(7)  The agency shall further require the physician or
296	business entity to provide additional security under one of the
297	following paragraphs:
298	(a)  An irrevocable letter of credit, as defined in chapter
299	675, in an amount equal to the amount of the loan.
300	(b)  An escrow account consisting of cash or assets
301	eligible for deposit in accordance with s. 625.52 in an amount
302	equal to the amount of the loan. If the escrow agent is
303	responsible for making the periodic payments on the loan, the
304	required escrow balance may be diminished as payments are made.
305	(c)  A pledge of the accounts receivable of the physician
306	or business entity. This pledge shall be reflected on the
307	financing statement.
308	(8)  All payments received from or on behalf of a physician
309	or business entity under this program shall be deposited into
310	the agency's Administrative Trust Fund to be used to fund new
311	loans.
312	(9)  If a physician or business entity that has received a
313	loan under this section ceases to provide care or services to
314	patients, or if the physician or business entity defaults in any
315	payment and the default continues for 30 days, the entire loan
316	balance shall be immediately due and payable and shall bear
317	interest from that point forward at the rate of 18 percent
318	annually. Upon default, the agency may offset any moneys owed to
319	the physician or business entity from the state and apply the
320	offset against the outstanding balance.
321	(10)  If a physician defaults in any payment and if the
322	default continues for 30 days, the default shall constitute
323	grounds for disciplinary action under chapter 458 or chapter 459
324	and under s. 456.072(1)(k).
325	Section 4.  Subsection (2) of section 483.181, Florida
326	Statutes, is amended to read:
327	483.181  Acceptance, collection, identification, and
328	examination of specimens.--
329	(2)  The results of a test must be reported directly to the
330	licensed practitioner or other authorized person who requested
331	it, and appropriate disclosure may be made by the clinical
332	laboratory without a patient's consent to other health care
333	practitioners and providers involved in the care or treatment of
334	the patient as specified in s. 456.057(7)(a). The report must
335	include the name and address of the clinical laboratory in which
336	the test was actually performed, unless the test was performed
337	in a hospital laboratory and the report becomes an integral part
338	of the hospital record.
339	Section 5.  This act shall take effect upon becoming a law.

CODING: Words stricken are deletions; words underlined are additions.