CS/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 in order to facilitate the exchange of data
5	between certain health care facility personnel,
6	practitioners, and providers and attending physicians;
7	eliminating access to a patient's health records by the
8	State Long-Term Care Ombudsman Council and the local long-
9	term care ombudsman councils; creating s. 408.051, F.S.;
10	creating the "Florida Electronic Health Records Exchange
11	Act"; providing definitions; authorizing the release of
12	certain health records under emergency medical conditions
13	without the consent of the patient or the patient
14	representative; providing for immunity from civil
15	liability; providing duties of the Agency for Health Care
16	Administration with regard to the availability of
17	specified information on the agency's Internet website;
18	requiring the agency to develop and implement a universal
19	patient authorization form in paper and electronic formats
20	for the release of certain health records; providing
21	procedures for use of the form; providing penalties;
22	providing for certain compensation and attorney's fees and
23	costs; creating s. 408.0512, F.S.; authorizing the agency
24	to operate a certified electronic health records
25	technology loan fund, subject to specified donations and
26	specific appropriation; requiring the agency to adopt
27	rules related to standard terms and conditions for the
28	loan fund; amending s. 409.916, F.S.; requiring the agency
29	to deposit into the Grants and Donations Trust Fund
30	private donations provided for the purpose of funding a
31	certified electronic health records technology loan fund;
32	creating s. 456.0393, F.S.; providing definitions;
33	requiring physicians to provide confirmation of the
34	meaningful use of electronic prescribing software in
35	conjunction with licensure renewal commencing on a
36	specified date; providing penalty for noncompliance;
37	authorizing rule adoption; amending s. 483.181, F.S.;
38	expanding access to laboratory reports in order to
39	facilitate the exchange of data between certain health
40	care practitioners and providers; providing an effective
41	date.
42
43	Be It Enacted by the Legislature of the State of Florida:
44
45	Section 1.  Subsection (4) of section 395.3025, Florida
46	Statutes, is amended to read:
47	395.3025  Patient and personnel records; copies;
48	examination.--
49	(4)  Patient records are confidential and must not be
50	disclosed without the consent of the patient or his or her legal
51	representative person to whom they pertain, but appropriate
52	disclosure may be made without such consent to:
53	(a)  Licensed facility personnel, and attending physicians,
54	or other health care practitioners and providers currently
55	involved in the care or treatment of the patient for use only in
56	connection with the treatment of the patient.
57	(b)  Licensed facility personnel only for administrative
58	purposes or risk management and quality assurance functions.
59	(c)  The agency, for purposes of health care cost
60	containment.
61	(d)  In any civil or criminal action, unless otherwise
62	prohibited by law, upon the issuance of a subpoena from a court
63	of competent jurisdiction and proper notice by the party seeking
64	such records to the patient or his or her legal representative.
65	(e)  The agency upon subpoena issued pursuant to s.
66	456.071, but the records obtained thereby must be used solely
67	for the purpose of the agency and the appropriate professional
68	board in its investigation, prosecution, and appeal of
69	disciplinary proceedings. If the agency requests copies of the
70	records, the facility shall charge no more than its actual
71	copying costs, including reasonable staff time. The records must
72	be sealed and must not be available to the public pursuant to s.
73	119.07(1) or any other statute providing access to records, nor
74	may they be available to the public as part of the record of
75	investigation for and prosecution in disciplinary proceedings
76	made available to the public by the agency or the appropriate
77	regulatory board. However, the agency must make available, upon
78	written request by a practitioner against whom probable cause
79	has been found, any such records that form the basis of the
80	determination of probable cause.
81	(f)  The Department of Health or its agent, for the purpose
82	of establishing and maintaining a trauma registry and for the
83	purpose of ensuring that hospitals and trauma centers are in
84	compliance with the standards and rules established under ss.
85	395.401, 395.4015, 395.4025, 395.404, 395.4045, and 395.405, and
86	for the purpose of monitoring patient outcome at hospitals and
87	trauma centers that provide trauma care services.
88	(g)  The Department of Children and Family Services or its
89	agent, for the purpose of investigations of cases of abuse,
90	neglect, or exploitation of children or vulnerable adults.
91	(h)  The State Long-Term Care Ombudsman Council and the
92	local long-term care ombudsman councils, with respect to the
93	records of a patient who has been admitted from a nursing home
94	or long-term care facility, when the councils are conducting an
95	investigation involving the patient as authorized under part II
96	of chapter 400, upon presentation of identification as a council
97	member by the person making the request. Disclosure under this
98	paragraph shall only be made after a competent patient or the
99	patient's representative has been advised that disclosure may be
100	made and the patient has not objected.
101	(h)(i)  A local trauma agency or a regional trauma agency
102	that performs quality assurance activities, or a panel or
103	committee assembled to assist a local trauma agency or a
104	regional trauma agency in performing quality assurance
105	activities. Patient records obtained under this paragraph are
106	confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
107	of the State Constitution.
108	(i)(j)  Organ procurement organizations, tissue banks, and
109	eye banks required to conduct death records reviews pursuant to
110	s. 395.2050.
111	(j)(k)  The Medicaid Fraud Control Unit in the Department
112	of Legal Affairs pursuant to s. 409.920.
113	(k)(l)  The Department of Financial Services, or an agent,
114	employee, or independent contractor of the department who is
115	auditing for unclaimed property pursuant to chapter 717.
116	(l)(m)  A regional poison control center for purposes of
117	treating a poison episode under evaluation, case management of
118	poison cases, or compliance with data collection and reporting
119	requirements of s. 395.1027 and the professional organization
120	that certifies poison control centers in accordance with federal
121	law.
122	Section 2.  Section 408.051, Florida Statutes, is created
123	to read:
124	408.051  Florida Electronic Health Records Exchange Act.--
125	(1)  SHORT TITLE.--This section may be cited as the
126	"Florida Electronic Health Records Exchange Act."
127	(2)  DEFINITIONS.--As used in this section, the term:
128	(a)  "Electronic health record" means a record of a
129	person's medical treatment that is created by a licensed health
130	care provider and stored in an interoperable and accessible
131	digital format.
132	(b)  "Qualified electronic health record" means an
133	electronic record of health-related information on an individual
134	that:
135	1.  Includes patient demographic and clinical health
136	information, such as medical history and problem lists; and
137	2.  Has the capacity to:
138	a.  Provide clinical decision support;
139	b.  Support physician order entry;
140	c.  Capture and query information relevant to health care
141	quality; and
142	d.  Exchange electronic health information with, and
143	integrate such information from, other sources.
144	(c)  "Certified electronic health records technology" means
145	a qualified electronic health record that is certified pursuant
146	to s. 3001(c)(5) of the Public Health Service Act as meeting
147	standards adopted under s. 3004 of such act that are applicable
148	to the type of record involved, such as an ambulatory electronic
149	health record for office-based physicians or an inpatient
150	hospital electronic health record for hospitals.
151	(d)  "Health record" means any information, recorded in any
152	form or medium, which relates to the past, present, or future
153	health of an individual for the primary purpose of providing
154	health care and health-related services.
155	(e)  "Identifiable health record" means any health record
156	that identifies the patient or with respect to which there is a
157	reasonable basis to believe the information can be used to
158	identify the patient.
159	(f)  "Patient" means an individual who has sought, is
160	seeking, is undergoing, or has undergone care or treatment in a
161	health care facility or by a health care provider.
162	(g)  "Patient representative" means a parent of a minor
163	patient, a court-appointed guardian for the patient, a health
164	care surrogate, or a person holding a power of attorney or
165	notarized consent appropriately executed by the patient granting
166	permission to a health care facility or health care provider to
167	disclose the patient's health care information to that person.
168	In the case of a deceased patient, the term also means the
169	personal representative of the estate of the deceased patient;
170	the deceased patient's surviving spouse or surviving parent, or
171	the minor child of the deceased patient; the attorney for the
172	patient's surviving spouse, parent, or adult child; or the
173	attorney for the parent or guardian of a surviving minor child.
174	(3)  EMERGENCY RELEASE OF IDENTIFIABLE HEALTH RECORD.--A
175	health care provider may release or access an identifiable
176	health record of a patient without the patient's consent for use
177	in the treatment of the patient for an emergency medical
178	condition, as defined in s. 395.002(8), when the health care
179	provider is unable to obtain the patient's consent or the
180	consent of the patient representative due to the patient's
181	condition or the nature of the situation requiring immediate
182	medical attention. A health care provider who in good faith
183	releases or accesses an identifiable health record of a patient
184	in any form or medium under this section is immune from civil
185	liability for accessing or releasing an identifiable health
186	record.
187	(4)  UNIVERSAL PATIENT AUTHORIZATION FORM.--
188	(a)  By July 1, 2010, the agency shall develop forms in
189	both paper and electronic formats which may be used by a health
190	care provider to document patient authorization for the use or
191	release, in any form or medium, of an identifiable health
192	record.
193	(b)  The agency shall adopt by rule the authorization form
194	and accompanying instructions and make the authorization form
195	available on the agency's website, pursuant to s. 408.05.
196	(c)  A health care provider receiving an authorization form
197	containing a request for the release of an identifiable health
198	record shall accept the form as a valid authorization to release
199	an identifiable health record. A health care provider may elect
200	to accept the authorization form in either electronic or paper
201	format or both. The individual or entity that submits the
202	authorization form containing a request for the release of an
203	identifiable health record shall determine which format is
204	accepted by the health care provider prior to submitting the
205	form.
206	(d)  An individual or entity that submits a request for an
207	identifiable health record is not required under this section to
208	use the authorization form adopted and distributed by the
209	agency.
210	(e)  The exchange by a health care provider of an
211	identifiable health record upon receipt of an authorization form
212	completed and submitted in accordance with agency instructions
213	creates a rebuttable presumption that the release of the
214	identifiable health record was appropriate. A health care
215	provider that releases an identifiable health record in reliance
216	on the information provided to the health care provider on a
217	properly completed authorization form does not violate any right
218	of confidentiality and is immune from liability under this
219	section.
220	(f)  A health care provider that exchanges an identifiable
221	health record upon receipt of an authorization form shall not be
222	deemed to have violated or waived any privilege protected under
223	the statutory or common law of this state.
224	(5)  PENALTIES.--A person who does any of the following may
225	be liable to the patient or a health care provider that has
226	released an identifiable health record in reliance on an
227	authorization form presented to the health care provider by the
228	person for compensatory damages caused by an unauthorized
229	release, plus reasonable attorney's fees and costs:
230	(a)  Forges a signature on an authorization form or
231	materially alters the authorization form of another person
232	without the person's authorization; or
233	(b)  Obtains an authorization form or an identifiable
234	health record of another person under false pretenses.
235	Section 3.  Section 408.0512, Florida Statutes, is created
236	to read:
237	408.0512  Certified electronic health records technology
238	loan fund.--
239	(1)  The agency may operate a certified electronic health
240	records technology loan fund subject to the availability of
241	eligible donations from public or private entities and funding
242	made available through s. 3014 of the Public Health Services Act
243	and subject to a specific appropriation as authorized by the
244	General Appropriations Act or as provided through the provisions
245	of s. 216.181(11)(a) and (b).
246	(2)  The agency shall adopt rules related to standard terms
247	and conditions for use in the loan fund.
248	Section 4.  Subsection (1) of section 409.916, Florida
249	Statutes, is amended to read:
250	409.916  Grants and Donations Trust Fund.--
251	(1)(a)  The agency shall deposit any funds received from
252	pharmaceutical manufacturers and all other funds received by the
253	agency from any other person as the result of a Medicaid cost
254	containment strategy, in the nature of a rebate, grant, or other
255	similar mechanism into the Grants and Donations Trust Fund.
256	(b)  The agency shall deposit any funds received from
257	private donations for the purpose of funding a certified
258	electronic health records technology loan fund into the Grants
259	and Donations Trust Fund.
260	Section 5.  Section 456.0393, Florida Statutes, is created
261	to read:
262	456.0393  Electronic prescribing; information required for
263	licensure renewal.--
264	(1)  As used in this section, the term:
265	(a)  "Electronic prescribing" has the same meaning as
266	provided in s. 408.0611.
267	(b)  "Meaningful use" means the electronic prescribing of
268	at least 50 percent of prescriptions written by a physician.
269	(2)  Effective January 1, 2012, each physician who applies
270	for license renewal under chapter 458 or chapter 459, except a
271	person registered pursuant to s. 458.345 or s. 459.021, must, in
272	conjunction with the renewal of such license, submit
273	confirmation, on a form approved by the board, of the meaningful
274	use of electronic prescribing software during the current
275	licensure cycle.
276	(3)  Failure to comply with the requirements of this
277	section shall constitute grounds for disciplinary action under
278	chapter 458 or chapter 459 and under s. 456.072(1)(k).
279	(4)  The Board of Medicine and the Board of Osteopathic
280	Medicine may adopt rules to carry out the provisions of this
281	section.
282	Section 6.  Subsection (2) of section 483.181, Florida
283	Statutes, is amended to read:
284	483.181  Acceptance, collection, identification, and
285	examination of specimens.--
286	(2)  The results of a test must be reported directly to the
287	licensed practitioner or other authorized person who requested
288	it, and appropriate disclosure may be made by the clinical
289	laboratory without a patient's consent to other health care
290	practitioners and providers involved in the care or treatment of
291	the patient as specified in s. 456.057(7)(a). The report must
292	include the name and address of the clinical laboratory in which
293	the test was actually performed, unless the test was performed
294	in a hospital laboratory and the report becomes an integral part
295	of the hospital record.
296	Section 7.  This act shall take effect upon becoming a law.

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