FLORIDA - MEDICAL RECORDS

I. CREATION, MAINTENANCE PROVISION OF MEDICAL RECORDS

1. Must Physicians Create a Medical Record for Each Patient?

Yes. The Florida Board of Medicine (Board) requires that a medical record be created for each patient.

Physicians must prepare contemporaneous, permanent treatment records which reflect the actual treatment or services rendered.

The following should be contained within the treatment record:

A. nutrition assessment;

B. the nutrition counseling plan;

C. dietary orders;

D. nutrition advice;

E. patient progress notes;

F. recommendations related to the patient's health or the patient's food or supplement intake;

G. any patient examination or test results;

H. patient histories;

I. records of drugs prescribed, dispensed or administered;

J. consultations with hospitals;

K. the physician's signature; and

I. the date of the visit.

F.S.A. § 458.331; 64 FL ADC 64B8-44.004

3. Are There Any Special Requirements Under Florida Law for Preparing and Maintaining Records on a Computer?

No.

4. What are a Physician's Obligations to Provide Medical Records at the request of the Patient?

A physician must, upon request of a patient or the person's legal representative, furnish, in a timely manner, without delays for legal review, copies of all reports and records relating to such examination or treatment, including X rays and insurance information. However, when a patient's psychiatric records are requested by the patient or the patient's legal representative, the health care practitioner may provide a report of examination and treatment in lieu of copies of records. Upon a patient's written request, complete copies of the patient's psychiatric records must be provided directly to a subsequent treating psychiatrist.

F.S.A. § 456.057

5. May a Physician Withhold Medical Records Because the Patient Owes Money to the Physician for Services Rendered?

No. A physician's provision of medical records may not be conditioned upon payment of a fee for services rendered.

F.S.A. § 456.057)

6.Are there Special Regulations Regarding a Company or an Organization's Medical Records of Employees?

No.

7. What are the Regulations Regarding the Release of Medical Records Following a Workers' Compensation Examination?

Upon the request of the Florida Department of Health, each medical report or bill obtained or received by the employer, the carrier, or the injured employee, or the attorney for the employer, carrier, or injured employee, with respect to the remedial treatment, care, and attendance of the injured employee, including any report of an examination, diagnosis, or disability evaluation, must be produced by the health care provider to the department pursuant to rules adopted by the department. The physician must also furnish to the injured employee or his or her attorney and the employer or carrier or its attorney, on demand, a copy of his or her office chart, records, and reports.

F.S.A. § 440.13

8. May a Physician Charge for Copying of Medical Records?

Yes. A physician furnishing copies of reports or records or making the reports or records available for digital scanning may not charge more than $1.00 per page for the first 25 pates, and then $.25 per page thereafter.

In the case of a demand for records with respect to workers compensation claims, a physician may charge the injured employee no more than $.50 per page for copying the records and the actual direct cost to the health care provider or health care facility for X rays, microfilm, or other non-paper records

F.S.A. § 456.057; 64 FL ADC 64B8-10.003

9. How Long Must Physicians Retain Patient Medical Records?

Regulations require that treatment records be retained for a period of at least 5 years from the date of the most recent entry.

However, the Statute of Limitations, permits a claim of malpractice to be brought against a physician up to seven years after "the date the incident giving rise to the incident occurred." Section 95.11(4)(b), Florida Statutes. For this reason, it is recommended that physicians retain medical records for at least seven years.

64 FL ADC 64B8-10.002

II. CONFIDENTIALITY

1. What Are the Exceptions to the General Rule that Physicians Must Maintain the Confidentiality of Medical Records?

A. A physician must release patient records as directed by subpoena, or other written demand, when issued by the Board of Medical Examiners or the Office of the Attorney General;

B. A physician must release records as required by law, such as the reporting of communicable diseases or gunshot wounds or suspected child abuse, etc., or when the patient's treatment is the subject of peer review;

C. A physician, in the exercise of professional judgment, and in the best interests of the patient (even absent the patient's request), may release pertinent information about the patient's treatment to another licensed health care professional who is providing or has been asked to provide treatment to the patient, or whose expertise may assist the physician in treating the patient; and

D. To any person, firm, or corporation that has procured or furnished such examination or treatment with the patient's consent;

E. A physician, in the exercise of professional judgment, who has a good faith belief that the patient, because of a mental or physical condition may pose an imminent danger to himself or to others, may release pertinent information to a law enforcement agency or other health care professional to minimize the threat of danger;

F. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient's legal representative by the party seeking such records.

G. 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.

H. To a regional poison control center for purposes of treating a poison episode under evaluation, case management of poison cases, or compliance with data collection and the professional organization that certifies poison control centers in accordance with federal law.

Note: HIV/AIDS records, sexually transmissible disease records, alcoholic drug abuse records, and psychiatric and psychotherapeutic records are extremely confidential medical records and are not to be disclosed pursuant to a general release.

F.S.A. § 456.057

2.How can a physician be sure that the release of records pursuant to a subpoena is in compliance with HIPAA privacy regulations?

Pursuant to F.S. § 456.057(7)(a), medical records may not be furnished to, and the medical condition of a patient may not be discussed 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.

HIPAA privacy requirements represent the minimum permissible level of confidentiality. In other words, states may enact more rigorous privacy standards and HIPAA will only preempt (i.e. supersede) state privacy provisions that are less stringent than the HIPAA ones. In Florida, it appears that procedural requirements with respect to disclosure are LESS stringent than HIPAA while substantive requirements are MORE stringent than HIPAA. Therefore, if Florida law prohibits disclosure otherwise permitted under HIPAA, then disclosure is prohibited.

Florida's statute, F.S.A. § 456.057(8) provides that patient information is privileged and may not be disclosed unless the disclosure falls within a statutory exception:

Except in a medical negligence action or administrative action when a health care practitioner or provider is or reasonably expects to be named as a defendant, information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient is confidential and may be disclosed only to other health care practitioners and providers involved in the care or treatment of the patient, or if permitted by written authorization from the patient or compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given.

The recent case of Lemieux v. Tandem Healthcare of Florida, 862 So. 2d 745 (Fla.App. 2 Dist. 2003) summarized the procedural and substantive differences between the HIPAA and Florida statutes regarding privacy as follows:

. . . It appears that the HIPAA procedural requirements for disclosure are more stringent than those in Florida. Compare § 456.0579[7], Fla. Stat. 2002 (allowing disclosure of protected health care information to those entities falling within the statutory exceptions with no notice or opportunity to object), with 45 C.F.R. § 164.512(e)(1)(iii) (2003) (allowing for disclosure of protected health information for litigation purposes only if the disclosing entity has provided written notice of its intent to disclose with sufficient time for the individual to object to the disclosure). However, the substantive provisions of [Florida statute] section 456.057[7] are more stringent than those of HIPAA. Compare § 456.057[7] (prohibiting disclosure of protected health care information except to entities falling within the four statutory exceptions) with 45 C.F.R. § 164.512(e)(1)[ii] (allowing disclosure of protected health care information to any third party as long as "satisfactory assurances" are provided). Because Florida's substantive law on this issue is more stringent than HIPAA, Florida law controls and the HIPAA provisions would not alter the outcome.

Id. at 748 (emphasis added).

Based upon the foregoing, it appears that neither Florida nor HIPAA privacy law requires a patient's prior written authorization prior to disclosure of protected health information pursuant to a valid subpoena during litigation, as long as the HIPAA procedural requirements are followed (i.e., must provide proof that written notice was given to the patient with sufficient time for the patient to object).

It is important to remember that subpoenas are often overly broad and may request information which, as set forth above, is privileged. It is wise to err on the side of caution, responding to a subpoena in a professional manner but providing no information until you consult with an attorney and obtain confirmation that patient consent is either given or not required and/or notice requirements have been met.

III. TERMINATION OF PRACTICE OR EMPLOYMENT

1. What Must be Done with Medical Records Upon a Physician's Leave of Absence, Death, Retirement or Relocation?

Physicians must place an advertisement in the local newspaper or notify patients, in writing, when they are terminating practice, retiring, or relocating, and no longer available to patients, and offer patients the opportunity to obtain a copy of their medical record.

21 FL ADC 21M-26.002

When a physician dies, the executor, administrator, personal representative or survivor of the deceased physician must retain medical records in existence upon the death of the physician concerning any patient of the physician for at least a period of two (2) years from the date of the death of the physician.

Within one (1) month from the date of death of the physician, the executor, administrator, personal representative or survivor of the deceased physician must publish in the newspaper of greatest general circulation in each county where the physician practiced and in a local newspaper that serves the immediate practice area, a notice indicating to the patients of the deceased physician, that the physician's medical records are available to the patients or their duly constituted representative from a specific person at a certain location. A copy of this notice must also be submitted to the Board within one (1) month from the date of death of the physician.

At the conclusion of a 22-month period of time from the date of the physician's death, or thereafter, the executor, administrator, personal representative, or survivor must cause to be published once during each week for four (4) consecutive weeks, in the newspaper of greatest general circulation in the county where the physician resided, a notice indicating to the patients of the deceased physician that the physician's medical records will be disposed of or destroyed one (1) month or later from the last day of the fourth week of publication of notice.

64 FL ADC 64B8-10.001

2. Termination of Employment from a Group Practice

May a Physician take the Medical Records of a Patient that he/she has Treated Upon the Termination or Dissolution of a Group Practice?

A records owner shall release to a health care practitioner who, as an employee of the records owner, previously provided treatment to a patient, those records that the health care practitioner actually created or generated when the health care practitioner treated the patient. Records released pursuant to this subsection shall be released only upon written request of the health care practitioner and shall be limited to the notes, plans of care, and orders and summaries that were actually generated by the health care practitioner requesting the record.

F.S.A. § 456.057

IV. DISPOSITION OF RECORDS

1. How Should Medical Records be Destroyed?

While there is no State law or Board rule addressing this issue, any method to be used for destroying medical records should generally protect confidential information and patient identity. Once notification requirements have been complied with, the physician should consider shredding or burning the documents rather than simply disposing of them in a garbage receptacle.

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.