Bill Text: FL S0804 | 2017 | Regular Session | Comm Sub
Bill Title: Electronic Health Records
Spectrum: Bipartisan Bill
Status: (Failed) 2017-05-05 - Died in Appropriations [S0804 Detail]
Download: Florida-2017-S0804-Comm_Sub.html
Florida Senate - 2017 CS for SB 804
By the Committee on Health Policy; and Senator Brandes
588-02407-17 2017804c1
1 A bill to be entitled
2 An act relating to electronic health records; amending
3 s. 765.101, F.S.; redefining the terms “health care
4 decision” and “incapacity” or “incompetent”; creating
5 s. 765.114, F.S.; authorizing a person to donate his
6 or her electronic health records, subject to certain
7 requirements; authorizing electronic health records
8 and qualified electronic health records to be donated
9 to specified entities for specified purposes;
10 providing a form for a uniform donor card; requiring
11 electronic health records and qualified electronic
12 health records donated by a health care surrogate or
13 proxy to be de-identified; authorizing electronic
14 health records and qualified electronic health records
15 to contain a donor’s identifying information under
16 certain conditions; authorizing a donor to amend the
17 terms or revoke an electronic health records donation
18 in specified manners; creating s. 765.1141, F.S.;
19 requiring the Agency for Health Care Administration
20 and the Department of Highway Safety and Motor
21 Vehicles to develop and implement a program that
22 encourages and authorizes persons to donate electronic
23 health records and qualified electronic health records
24 as part of a process of issuing and renewing
25 identification cards and driver licenses; requiring
26 specified information to be included in the donor
27 registration card distributed by the department;
28 requiring the agency and the department to develop and
29 implement a program to identify donors through
30 notations on identification cards and driver licenses;
31 requiring the agency to provide certain supplies and
32 forms, and the department to provide a recordkeeping
33 system; prohibiting the department and agency from
34 incurring liability in connection with the performance
35 of certain acts; requiring the department to maintain
36 a link on its website referring visitors to an
37 electronic health records repository under certain
38 circumstances; requiring rulemaking; amending s.
39 765.203, F.S.; revising the suggested form for
40 designation of a health care surrogate to expand
41 health care decision authority of the health care
42 surrogate; providing an effective date.
43
44 Be It Enacted by the Legislature of the State of Florida:
45
46 Section 1. Paragraph (e) is added to subsection (6) of
47 section 765.101, Florida Statutes, and subsection (10) of that
48 section is amended, to read:
49 765.101 Definitions.—As used in this chapter:
50 (6) “Health care decision” means:
51 (e) The right of a health care surrogate or proxy to donate
52 the principal’s electronic health records and qualified
53 electronic health records, as defined in s. 408.051, upon the
54 principal’s death to an approved medical or dental school,
55 college, university, hospital, or repository that collects,
56 stores, and shares de-identified electronic health records in
57 the public domain for purposes of educating or developing
58 diagnoses, treatment choices, policies, health care system
59 designs, and innovations in order to improve health outcomes and
60 reduce health care costs. For purposes of this paragraph, the
61 term “approved” means approved by the Department of Health.
62 (10) “Incapacity” or “incompetent” means the patient is
63 physically or mentally unable to communicate a willful and
64 knowing health care decision. For the purposes of making an
65 anatomical gift or donating electronic health records or
66 qualified electronic health records, the term also includes a
67 patient who is deceased.
68 Section 2. Section 765.114, Florida Statutes, is created to
69 read:
70 765.114 Donating electronic health records and qualified
71 electronic health records.—
72 (1) A person may donate all or part of his or her
73 electronic health records or qualified electronic health records
74 by doing any of the following:
75 (a) Signing an electronic health records donor card.
76 (b) Indicating an intent to donate on his or her driver
77 license or identification card issued by the Department of
78 Highway Safety and Motor Vehicles. Revocation, suspension,
79 expiration, or cancellation of the driver license or
80 identification card does not invalidate the intent to donate.
81 (c) Expressing a wish to donate in a living will or other
82 advance directive.
83 (d) Expressing a wish to donate in a will. The donation
84 becomes effective upon the death of the testator without waiting
85 for probate. If the will is not probated or if it is declared
86 invalid for testamentary purposes, the donation is nevertheless
87 valid to the extent that it has been acted upon in good faith.
88 (e) Expressing a wish to donate in a document other than a
89 will. The document must be signed by the donor in the presence
90 of two adult witnesses, who must sign the document in the
91 donor’s presence. If the donor cannot sign, the document may be
92 signed by another person at the donor’s direction and in his or
93 her presence and in the presence of two witnesses, who must sign
94 the document in the donor’s presence. Delivery of the document
95 during the donor’s lifetime is not necessary to make the intent
96 to donate valid. The following form of written document is
97 sufficient for any person to make a donation of electronic
98 health records or qualified electronic health records for the
99 purposes of this part:
100
101 UNIFORM ELECTRONIC HEALTH RECORDS DONOR CARD
102
103 The undersigned hereby makes this health records donation, to
104 take effect on death. The words and marks below indicate my
105 desires:
106 I give:
107 1. .... all electronic health records;
108 2. .... only the following electronic health records:
109 ...[Specify the health records]...
110 for the purpose of medical research or education.
111
112 Signed by the donor and the following witnesses in the presence
113 of each other:
114
115 ...(Signature of donor)... ...(Date of birth of donor)...
116 ...(Date signed)... ...(City and State)...
117
118 ...(Witness)... ...(Witness)...
119 ...(Address)... ...(Address)...
120
121 (2) The de-identified electronic health records or
122 qualified electronic health records may be given to one or more
123 donees that are accredited medical or dental schools, colleges,
124 universities, hospitals, or repositories for the purposes of
125 educating or developing diagnoses, treatment choices, policies,
126 health care system designs, and innovations to improve health
127 outcomes and reduce health care costs. Electronic health records
128 or qualified electronic health records with a donor’s
129 identifying information may be given to a donee upon written
130 consent of the donor. The donees must be approved by the
131 Department of Health and may be specified by name.
132 (3) Any electronic health records or qualified electronic
133 health records donated by a health care surrogate or proxy
134 designated by the decedent pursuant to part II of this chapter
135 must be de-identified, unless the donee provides written consent
136 stating that his or her identifying information may be included
137 with such records, and such donation must be made by a document
138 signed by that person or made by that person’s witnessed
139 telephonic discussion, telegraphic message, or other recorded
140 message.
141 (4) A donor may amend the terms of or revoke a donation of
142 electronic health records or qualified electronic health records
143 by any of the following means:
144 (a) The execution and delivery to the donee of a signed
145 statement witnessed by at least two adults, one of whom is a
146 disinterested witness.
147 (b) An oral statement that is made in the presence of two
148 adult witnesses, one of whom is not a family member, and
149 communicated to the donor’s family or attorney or to the donee.
150 An oral statement is effective only if the medical or dental
151 school, college, university, hospital, or repository has actual
152 notice of the oral amendment or revocation.
153 (c) An oral statement made during a terminal illness or
154 injury addressed to the primary physician, who must communicate
155 the revocation of the gift to the medical or dental school,
156 college, university, hospital, or repository.
157 (d) A signed document found on or about the donor’s person.
158 (e) A later-executed document of donation which amends or
159 revokes a previous health records donation or portion of a
160 health records donation, either expressly or by inconsistency.
161 (f) The destruction or cancellation, with the intent to
162 revoke the donation, of the document that indicates the intent
163 to donate or the destruction or cancellation of that portion of
164 the document which indicates the intent to donate.
165 Section 3. Section 765.1141, Florida Statutes, is created
166 to read:
167 765.1141 Electronic health records donations as part of
168 driver license or identification card process.—
169 (1) The Agency for Health Care Administration and the
170 Department of Highway Safety and Motor Vehicles shall develop
171 and implement a program encouraging and authorizing persons to
172 donate electronic health records and qualified electronic health
173 records, as defined in s. 408.051, as a part of the process of
174 issuing and renewing identification cards and driver licenses.
175 The donor registration card distributed by the department must
176 include the information and signatures required in the uniform
177 electronic health records donor card under s. 765.114(1)(e) and
178 such additional information as determined necessary by the
179 department. The department shall also develop and implement a
180 program to identify donors which includes notations on
181 identification cards and driver licenses to clearly indicate the
182 individual’s intent to donate his or her electronic health
183 records. The agency shall provide the necessary supplies and
184 forms using appropriated funds or contributions from interested
185 voluntary, nonprofit organizations. The department shall provide
186 the necessary recordkeeping system using appropriated funds. The
187 department and the agency do not incur liability in connection
188 with the performance of any act authorized in this section.
189 (2) The department shall maintain an integrated link on its
190 website referring a visitor renewing an identification card or a
191 driver license or conducting other business to an electronic
192 health records repository if available.
193 (3) The department, after consultation with and concurrence
194 by the agency, shall adopt rules to implement this section
195 pursuant to chapter 120.
196 Section 4. Section 765.203, Florida Statutes, is amended to
197 read:
198 765.203 Suggested form of designation.—A written
199 designation of a health care surrogate executed pursuant to this
200 chapter may, but need not be, in the following form:
201
202 DESIGNATION OF HEALTH CARE SURROGATE
203
204 I, ...(name)..., designate as my health care surrogate under s.
205 765.202, Florida Statutes:
206
207 Name: ...(name of health care surrogate)...
208 Address: ...(address)...
209 Phone: ...(telephone)...
210
211 If my health care surrogate is not willing, able, or reasonably
212 available to perform his or her duties, I designate as my
213 alternate health care surrogate:
214
215 Name: ...(name of alternate health care surrogate)...
216 Address: ...(address)...
217 Phone: ...(telephone)...
218
219 INSTRUCTIONS FOR HEALTH CARE
220
221 I authorize my health care surrogate to:
222 ...(Initial here)... Receive any of my health information,
223 whether oral or recorded in any form or medium, that:
224 1. Is created or received by a health care provider, health
225 care facility, health plan, public health authority, employer,
226 life insurer, school or university, or health care
227 clearinghouse; and
228 2. Relates to my past, present, or future physical or
229 mental health or condition; the provision of health care to me;
230 or the past, present, or future payment for the provision of
231 health care to me.
232 I further authorize my health care surrogate to:
233 ...(Initial here)... Make all health care decisions for me,
234 which means he or she has the authority to:
235 1. Provide informed consent, refusal of consent, or
236 withdrawal of consent to any and all of my health care,
237 including life-prolonging procedures.
238 2. Apply on my behalf for private, public, government, or
239 veterans’ benefits to defray the cost of health care.
240 3. Access my health information reasonably necessary for
241 the health care surrogate to make decisions involving my health
242 care and to apply for benefits for me.
243 4. Decide to make an anatomical gift pursuant to part V of
244 chapter 765, Florida Statutes.
245 5. Donate my electronic health records and qualified
246 electronic health records, as defined in s. 408.051, Florida
247 Statutes, to one or more accredited medical or dental schools,
248 colleges, universities, hospitals, or repositories, approved by
249 the Department of Health, to share my de-identified health
250 records for purposes of developing diagnoses, treatment choices,
251 policies, health care system designs, and innovations to improve
252 health outcomes and reduce health care costs.
253 ...(Initial here)... Specific instructions and
254 restrictions: ..................................................
255 ................................................................
256 ................................................................
257
258 While I have decisionmaking capacity, my wishes are controlling
259 and my physicians and health care providers must clearly
260 communicate to me the treatment plan or any change to the
261 treatment plan prior to its implementation.
262
263 To the extent I am capable of understanding, my health care
264 surrogate shall keep me reasonably informed of all decisions
265 that he or she has made on my behalf and matters concerning me.
266
267 THIS HEALTH CARE SURROGATE DESIGNATION IS NOT AFFECTED BY MY
268 SUBSEQUENT INCAPACITY EXCEPT AS PROVIDED IN CHAPTER 765, FLORIDA
269 STATUTES.
270
271 PURSUANT TO SECTION 765.104, FLORIDA STATUTES, I UNDERSTAND THAT
272 I MAY, AT ANY TIME WHILE I RETAIN MY CAPACITY, REVOKE OR AMEND
273 THIS DESIGNATION BY:
274 (1) SIGNING A WRITTEN AND DATED INSTRUMENT WHICH EXPRESSES
275 MY INTENT TO AMEND OR REVOKE THIS DESIGNATION;
276 (2) PHYSICALLY DESTROYING THIS DESIGNATION THROUGH MY OWN
277 ACTION OR BY THAT OF ANOTHER PERSON IN MY PRESENCE AND UNDER MY
278 DIRECTION;
279 (3) VERBALLY EXPRESSING MY INTENTION TO AMEND OR REVOKE
280 THIS DESIGNATION; OR
281 (4) SIGNING A NEW DESIGNATION THAT IS MATERIALLY DIFFERENT
282 FROM THIS DESIGNATION.
283
284 MY HEALTH CARE SURROGATE’S AUTHORITY BECOMES EFFECTIVE WHEN MY
285 PRIMARY PHYSICIAN DETERMINES THAT I AM UNABLE TO MAKE MY OWN
286 HEALTH CARE DECISIONS UNLESS I INITIAL EITHER OR BOTH OF THE
287 FOLLOWING BOXES:
288
289 IF I INITIAL THIS BOX [....], MY HEALTH CARE SURROGATE’S
290 AUTHORITY TO RECEIVE MY HEALTH INFORMATION TAKES EFFECT
291 IMMEDIATELY.
292
293 IF I INITIAL THIS BOX [....], MY HEALTH CARE SURROGATE’S
294 AUTHORITY TO MAKE HEALTH CARE DECISIONS FOR ME TAKES EFFECT
295 IMMEDIATELY. PURSUANT TO SECTION 765.204(3), FLORIDA STATUTES,
296 ANY INSTRUCTIONS OR HEALTH CARE DECISIONS I MAKE, EITHER
297 VERBALLY OR IN WRITING, WHILE I POSSESS CAPACITY SHALL SUPERSEDE
298 ANY INSTRUCTIONS OR HEALTH CARE DECISIONS MADE BY MY SURROGATE
299 THAT ARE IN MATERIAL CONFLICT WITH THOSE MADE BY ME.
300
301 SIGNATURES: Sign and date the form here:
302 ...(date)... ...(sign your name)...
303 ...(address)... ...(print your name)...
304 ...(city)... ...(state)...
305
306 SIGNATURES OF WITNESSES:
307 First witness Second witness
308 ...(print name)... ...(print name)...
309 ...(address)... ...(address)...
310 ...(city)... ...(state)... ...(city)... ...(state)...
311 ...(signature of witness)... ...(signature of witness)...
312 ...(date)... ...(date)...
313 Section 5. This act shall take effect July 1, 2017.
