CS/HB 937

1	A bill to be entitled
2	An act relating to public records; creating s. 893.0551,
3	F.S.; providing definitions; exempting from public records
4	requirements information and records reported to the
5	Department of Health under the electronic prescription
6	drug monitoring program for monitoring the prescribing and
7	dispensing of controlled substances listed in Schedules
8	II-IV; authorizing certain persons and entities access to
9	patient-identifying, practitioner-identifying, or
10	pharmacist-identifying information; providing guidelines
11	for the use of such information and penalties for
12	violations; providing for future legislative review and
13	repeal; providing a finding of public necessity; providing
14	a contingent effective date.
15
16	Be It Enacted by the Legislature of the State of Florida:
17
18	Section 1.  Section 893.0551, Florida Statutes, is created
19	to read:
20	893.0551  Public records exemption for the electronic
21	prescription drug monitoring program.--
22	(1)  For purposes of this section, the term:
23	(a)  "Active investigation" has the same meaning as
24	provided in s. 893.055.
25	(b)  "Dispenser" has the same meaning as provided in s.
26	893.055.
27	(c)  "Health care practitioner" or "practitioner" has the
28	same meaning as provided in s. 893.055.
29	(d)  "Health care regulatory board" has the same meaning as
30	provided in s. 893.055.
31	(e)  "Law enforcement agency" has the same meaning as
32	provided in s. 893.055.
33	(f)  "Pharmacist" means any person licensed under chapter
34	465 to practice the profession of pharmacy.
35	(g)  "Pharmacy" has the same meaning as provided in s.
36	893.055.
37	(h)  "Prescriber" has the same meaning as provided in s.
38	893.055.
39	(2)  The following information of a patient or patient's
40	agent, a health care practitioner, a dispenser, an employee of
41	the practitioner who is acting on behalf of and at the direction
42	of the practitioner, a pharmacist, or a pharmacy that is
43	contained in records held by the department under s. 893.055 is
44	confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
45	of the State Constitution:
46	(a)  Name.
47	(b)  Address.
48	(c)  Telephone number.
49	(d)  Insurance plan number.
50	(e)  Government-issued identification number.
51	(f)  Provider number.
52	(g)  Drug Enforcement Administration number.
53	(h)  Any other unique identifying information or number.
54	(3)  The department shall disclose such confidential and
55	exempt information to the following entities after using a
56	verification process to ensure the legitimacy of that person's
57	or entity's request for the information:
58	(a)  The Attorney General and his or her designee when
59	working on Medicaid fraud cases involving prescription drugs or
60	when the Attorney General has initiated a review of specific
61	identifiers of Medicaid fraud regarding prescription drugs. The
62	Attorney General or his or her designee may disclose the
63	confidential and exempt information received from the department
64	to a criminal justice agency as defined in s. 119.011 as part of
65	an active investigation that is specific to a violation of
66	prescription drug abuse or prescription drug diversion law as it
67	relates to controlled substances. The Attorney General's
68	Medicaid fraud investigators may not have direct access to the
69	department's database.
70	(b)  The department's relevant health care regulatory
71	boards responsible for the licensure, regulation, or discipline
72	of a practitioner, pharmacist, or other person who is authorized
73	to prescribe, administer, or dispense controlled substances and
74	who is involved in a specific controlled substances
75	investigation for prescription drugs involving a designated
76	person. The health care regulatory boards may request
77	information from the department but may not have direct access
78	to its database. The health care regulatory boards may provide
79	such information to a law enforcement agency pursuant to ss.
80	456.066 and 456.073.
81	(c)  A law enforcement agency that has initiated an active
82	investigation involving a specific violation of law regarding
83	prescription drug abuse or diversion of prescribed controlled
84	substances. The law enforcement agency may disclose the
85	confidential and exempt information received from the department
86	to a criminal justice agency as defined in s. 119.011 as part of
87	an active investigation that is specific to a violation of
88	prescription drug abuse or prescription drug diversion law as it
89	relates to controlled substances. A law enforcement agency may
90	request information from the department but may not have direct
91	access to its database.
92	(d)  A health care practitioner who certifies that the
93	information is necessary to provide medical treatment to a
94	current patient in accordance with ss. 893.05 and 893.055.
95	(e)  A pharmacist who certifies that the requested
96	information will be used to dispense controlled substances to a
97	current patient in accordance with ss. 893.04 and 893.055.
98	(f)  A patient or the legal guardian or designated health
99	care surrogate for an incapacitated patient, if applicable,
100	making a request as provided in s. 893.055(7)(c)4.
101	(g)  The patient's pharmacy, prescriber, or dispenser who
102	certifies that the information is necessary to provide medical
103	treatment to his or her current patient in accordance with s.
104	893.055.
105	(4)  Any agency or person who obtains such confidential and
106	exempt information pursuant to this section must maintain the
107	confidential and exempt status of that information.
108	(5)  Any person who willfully and knowingly violates this
109	section commits a felony of the third degree, punishable as
110	provided in s. 775.082, s. 775.083, or s. 775.084.
111	(6)  This section is subject to the Open Government Sunset
112	Review Act in accordance with s. 119.15 and shall stand repealed
113	on October 2, 2014, unless reviewed and saved from repeal
114	through reenactment by the Legislature.
115	Section 2.  The Legislature finds that it is a public
116	necessity that certain identification and location information
117	of a patient or patient's agent; a health care practitioner as
118	defined in s. 893.055, Florida Statutes; a dispenser as defined
119	in s. 893.055, Florida Statutes; an employee of the practitioner
120	who is acting on behalf of and at the direction of the
121	practitioner; a pharmacist; or a pharmacy as defined in s.
122	893.055, Florida Statutes, that is contained in records that are
123	held by the Department of Health under s. 893.055, Florida
124	Statutes, the electronic prescription drug monitoring system for
125	the monitoring of the prescribing and dispensing of controlled
126	substances, be made confidential and exempt from public records
127	requirements. Specifically, the Legislature finds that it is a
128	public necessity to make confidential and exempt the name,
129	address, telephone number, insurance plan number, government-
130	issued identification number, provider number, Drug Enforcement
131	Administration number, and any other unique identifying
132	information or number. Information concerning the prescriptions
133	that have been prescribed or dispensed to a patient is a
134	private, personal matter between the patient, the practitioner,
135	and the pharmacist. Nevertheless, the reporting of prescriptions
136	on a timely and accurate basis by dispensing practitioners and
137	pharmacists will ensure the ability of the state to review and
138	provide oversight of prescribing and dispensing practices.
139	Further, the reporting of this information will facilitate
140	investigations and prosecutions of violations of state drug laws
141	by patients, practitioners, and pharmacists, thereby increasing
142	compliance with those laws. However, if in the process the
143	information that would identify a patient is not made
144	confidential and exempt from disclosure, any person could
145	inspect and copy the record and be aware of the patient's
146	prescriptions. The availability of such information to the
147	public would result in the invasion of the patient's privacy. If
148	the identity of the patient could be correlated with his or her
149	prescriptions and his or her prescription dispensing history, it
150	would be possible for the public to become aware of the diseases
151	or other medical concerns for which a patient is being treated
152	by his or her physician. This knowledge could be used to
153	embarrass or to humiliate a patient or to discriminate against
154	him or her. Requiring the reporting of prescribing and
155	dispensing information while protecting a patient's personal
156	identifying information will facilitate efforts to maintain
157	compliance with the state's drug laws and will facilitate the
158	sharing of information between health care practitioners and
159	pharmacists while maintaining and ensuring patient privacy.
160	Additionally, exempting from disclosure the personal identifying
161	information of practitioners will ensure that an individual will
162	not be able to identify which practitioners prescribe the
163	largest amount of a particular type of drug and to seek out
164	those practitioners in order to increase the likelihood of
165	obtaining a particular prescribed substance. Further, protecting
166	personal identifying information of pharmacists and dispensers
167	ensures that an individual will not be able to identify which
168	pharmacists, pharmacies, or dispensing health care practitioners
169	dispense the largest amount of a particular controlled substance
170	and identify that pharmacy or dispensing health care
171	practitioner as a potential target for a robbery or burglary.
172	Thus, the Legislature finds that it is a public necessity to
173	make confidential and exempt from public records requirements
174	certain identification and location information of a patient or
175	patient's agent, a health care practitioner, a dispenser, an
176	employee of the practitioner who is acting on behalf of and at
177	the direction of the practitioner, a pharmacist, or a pharmacy.
178	Section 3.  This act shall take effect July 1, 2009, if HB
179	897 or similar legislation establishing an electronic monitoring
180	system to monitor the prescribing and dispensing of controlled
181	substances is adopted in the same legislative session or an
182	extension thereof and becomes law.

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