| authorization
of disclosures, and exceptions (Florida)
In general, a records
owner may not furnish a patient's medical
records to, or discuss the medical condition of a patient
with, any person other than the patient or the patient's legal
representative, or other health care practitioners and providers
involved in the care or treatment of the patient, except upon
written authorization of the patient.
However, medical
records may be furnished without written authorization under
the following circumstances. (Note that "consent"
is used as a synonym for "authorization" here, even
though these terms refer to two very different sets of processes
and requirements under HIPAA.)
- to "any
person, firm, or corporation that has procured or furnished
such examination or treatment" with the patient's consent;
- when a "compulsory
physical examination is made" pursuant to the Florida
Rules of Civil Procedure, "in which case copies of
the medical records shall be furnished to both the defendant
and the plaintiff";
- upon "the
issuance of a subpoena from a court of competent jurisdiction"
in a civil or criminal action, "and proper notice to
the patient or the patient's legal representative"
is made by the person seeking the records;
- for
"statistical and scientific research, provided the
information is abstracted in such a way as to protect the
identity of the patient, or provided written permission
is received from the patient or the patient's legal representative";
- when "compelled
by subpoena at a deposition, evidentiary hearing, or trial
for which proper notice has been given" related to
a medical negligence action or administrative proceeding.
(FL Stat 456.067)
Further, the state
may, via one of its agencies or departments, obtain patient
records pursuant to a subpoena if there is "reasonable
cause to believe" that a health care practitioner has:
- excessively
or inappropriately prescribed any controlled substance;
- practiced "below
that level of care, skill, and treatment required"
by professional practice acts;
- given inadequate
care due to a patient's termination of insurance; or
- engaged in some
kind of fraud (e.g., mis-billing, fraudulent solicitation
of patient, kickbacks).
In such circumstances,
"reasonable attempts" must be made to obtain a patient
authorization for release of records.
All medical records
obtained by state agencies and any other documents maintained
by them which identify the patient by name are confidential
and exempt from Florida public records access provisions (e.g.,
FL Stat 119.07). Such records many be used solely for investigation,
prosecution, and other disciplinary proceedings for which
the materials were obtained.
Strictly speaking,
the above does not apply to hospitals, ambulatory surgical
centers and similar licensed facilities, which are subject
to their own separate, but nonetheless very similar, statutory
specification of disclosure rules (in Chapter 395).
Such facilities
must keep patient records confidential, and generally may
not disclose the information in them "without the consent
of the person to whom they pertain." Exceptions to the
consent (authorization) requirement in this case are disclosures:
- to "licensed
facility personnel and attending physicians for use in connection
with the treatment of the patient";
- to "licensed
facility personnel only for administrative purposes or risk
management and quality assurance functions";
- to state
agencies, "for purposes of health care cost containment";
- upon "the
issuance of a subpoena from a court of competent jurisdiction"
in a civil or criminal action, with "proper notice
by the party seeking such records to the patient or his
or her legal representative";
- or in response
to a subpoena issued for the purpose of investigating or
prosecuting some kind of practitioner misconduct (see list
above);
- by state agencies
such as the Department of Health, "for the purpose
of establishing and maintaining a trauma registry and for
the purpose of ensuring that hospitals and trauma centers
are in compliance" with applicable standards and rules;
- by the Department
of Children and Family Services or its agent, "for
the purpose of investigations of cases of abuse, neglect,
or exploitation of children or vulnerable adults";
- by the State
Long-Term Care Ombudsman Council and the local long-term
care ombudsman councils, "with respect to the records
of a patient who has been admitted from a nursing home or
long-term care facility, when the councils are conducting
an investigation" involving a patient at such a facility";
- by a local trauma
agency or a regional trauma agency "that performs quality
assurance activities, or a panel or committee assembled
to assist a local trauma agency or a regional trauma agency
in performing quality assurance activities";
- by organ procurement
organizations, tissue banks, and eye banks required to conduct
death records reviews; or
- by the Medicaid
Fraud Control Unit in the Department of Legal Affairs pursuant
to an investigation. (395.3025)
The recipients
of such disclosures, if other than the patient or the patient's
representative, may use such information "only for the
purpose provided and may not further disclose any information
to any other person or entity, unless expressly permitted
by the written consent of the patient." Note also that
a "general authorization for the release of medical information
is not sufficient for this purpose."
As before, any
medical records obtained by state agencies are confidential,
and exempt from Florida public records access provisions.
Employers who provide
or administer health insurance benefits or life insurance
benefits to their employees must maintain the confidentiality
of information relating to the medical condition or status
of any person covered by such benefits. Information in the
possession of a public employer is exempt from the public
records access provisions. Employers are liable for damages
to persons damaged by a failure to implement procedures to
maintain confidentiality. (760.50(5)).
See also:
Last modified:
15-May-2005
[RC]
|
