This week, Governor Crist signed into law SB 162, creating the Florida Electronic Health Records Exchange Act (“Act”) and new section 408.051, Florida Statutes, to provide standards for the sharing of health information, a key element in bringing Florida’s health care industry into the 21st Century by implementing electronic health records and creating a statewide health information network. I had the privilege of serving as a member of the Governor’s Legal Work Group and participating with the Agency for Health Care Administration (“AHCA” or the “Agency”), in drafting this new legislation. AHCA has been charged with overseeing the state’s creation of this network, which experts agree is an important step in improving the quality of patient care by eliminating medical errors and duplication, and controlling health care costs.

The confidentiality and privacy of an individual’s health information is currently protected under the Federal HIPAA law and several provisions of Florida law. These laws limit the ability of hospitals, physicians and other health care providers to disclose such information without the prior written consent or authorization of the patient or his/her legal representative, except in very limited circumstances provided by statute. The concern for maintaining the privacy of health information was foremost in the minds of the Agency and everyone involved in drafting the new Act. However, there were unnecessary barriers in Florida law that prohibited sharing a patient’s health information even with other health care providers involved in the care and treatment of the patient, if they did not work at the same facility! The Act addresses these barriers, in addition to creating a new law that will position Florida to benefit from the Federal dollars that become available in 2011 to subsidize physicians and hospitals to purchase and implement electronic health records.

The new Act, in major part accomplishes the following:

• rovides definitions for electronic health record, qualified electronic health record, certified electronic health record technology, health record, identifiable health record, patient and patient representative.
• Establishes standards, as well as immunity from civil liability, for persons accessing or releasing health information during an emergency.
• Requires the adoption and distribution of a Universal Patient Authorization Form, electronic or paper, to be developed by the Agency by July 1, 2010.
• Amends Section 395.3025(4), F.S., to provide that appropriate disclosure can be made by hospitals to health care practitioners and providers involved in the care or treatment of the patient, who do not work at the same hospital.
• Amends Section 483.181(2), F.S., to provide that appropriate disclosure may be made by a clinical laboratory to health care practitioners and providers involved in the care or treatment of the patient as specified in the practitioners’ licensure law.
• Provides immunity from liability for a health care provider releasing an identifiable health record in reliance on the information provided to the health care provider on a properly completed Agency Universal Patient Authorization Form.
• Provides for compensatory damages, plus reasonable attorney’s fees and costs, if a person obtains the patient’s authorization by forging a signature on the authorization form or materially altered the authorization form of another person without the patient’s authorization, or if the requesting entity obtained an authorization form or an identifiable health record of another person under false pretenses.
• Subject to the availability of eligible donations from public or private entities and funding made available through Section 3014 of the Public Health Services Act, the Agency may operate a certified electronic health record technology loan fund, subject to a specific appropriation as authorized by the State.
• Requires the Agency, by rule, to develop standard terms and conditions for use in the loan program.

The Agency will be the conduit for the Federal subsidies available for health care providers and hospitals that treat Medicare and Medicaid patients to purchase and implement electronic health record systems in the next several years. The Act assures that such systems will have to meet regulatory standards, so that there can be some consistency and protection for the purchasers, users and patients whose information will be the heart of these systems. Now, Florida law has been updated to facilitate providers to share health information and implement electronic health record systems.

The Federal government is currently also actively establishing standards for electronic health records and the electronic health network that will follow. This is a “work in progress,” but it is the future and “the future is now.” Those that begin planning and doing their due diligence early will be in the best position, so health care providers should start evaluating electronic health record vendors and systems and looking at opportunities to participate in the Federal subsidies and the new Florida technology loan program. As always, it is “buyer beware.” Having experienced and competent health care counsel to help you negotiate good contracts with any vendor you select, to help ensure that any system you purchase will comply with government requirements, even as they change and evolve, will be critical to assuring you get what you pay for and what you will need in an electronic health record system.