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Medical Records Information FS and FAC

CHAPTER 64B8-10 MEDICAL RECORDS RETENTION, DISPOSITION, REPRODUCTION

64B8-10.001 Medical Records of Deceased Physician; Retention, Time Limitations.
64B8-10.002 Medical Records of Physicians Relocating or Terminating Practice; Retention, Disposition, Time Limitations.
64B8-10.003 Costs of Reproducing Medical Records.
64B8-10.004 Legal Representative Defined.

64B8-10.001 Medical Records of Deceased Physician; Retention, Time Limitations.

(1) The executor, administrator, personal representative or survivor of a deceased physician licensed pursuant to Chapter 458, Florida Statutes, shall 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.

(2) Within one (1) month from the date of death of the physician, the executor, administrator, personal representative or survivor of the deceased physician shall cause to be published 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 shall also be submitted to the Board of Medicine within one (1) month from the date of death of the physician.

(3) 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 shall 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.

Specific Authority 456.058, 458.309 FS. Law Implemented 456.058 FS. History–New 7-1-80, Formerly 21M-26.01, Amended 7-3-89, Formerly 21M-26.001, Amended 11-4-93, Formerly 61F6-26.001, Amended 1-26-97, Formerly 59R-10.001.

64B8-10.002 Medical Records of Physicians Relocating or Terminating Practice; Retention, Disposition, Time Limitations.

(1) The Board of Medicine and the Legislature recognize the need for maintenance and retention of Medical Records in order to protect and serve patients. For that reason, the Legislature has directed the Board to promulgate rules setting standards that will provide a minimum requirement for retention and disposition of patient records of deceased practitioners and practitioners relocating and terminating practice. However, the Board is concerned that the promulgation of these rules may mislead the licensed physicians. Rule 64B8-10.002, F.A.C., sets forth standards which if not met will constitute a violation of Section 456.058, Florida Statutes, and will subject the physician to disciplinary proceedings by the Department of Health. Physicians should retain records as long as needed not only to serve and protect patients, but also to protect themselves against adverse actions. The times specified in Rule 64B8-10.002, F.A.C., may well be less than the length of time necessary for protecting the physician. Further, the times stated may fall below the community standards for retention in their communities and practice settings and for specific patient needs. For the latter purposes, the physician may wish to seek advice from private counsel or their malpractice insurance carrier.

(2) A licensed physician shall maintain the full and total responsibility for and control of all files and records relating to his patients and his medical practice. All such records shall remain confidential except as otherwise provided by law and shall be maintained in the licensed physician’s office or in the possession of the licensed physician.

(3) A licensed physician shall keep adequate written medical records, as required by Section 458.331(1)(m), Florida Statutes, for a period of at least five years from the last patient contact.

(4) When a licensed physician terminates practice or relocates and is no longer available to patients, patients should be notified of such termination, sale, or relocation and unavailability by the physician’s causing to be published once during each week for four (4) consecutive weeks, in the newspaper of greatest general circulation in each county in which the physician practices or practiced and in a local newspaper that serves the immediate practice area, a notice which shall contain the date of termination, sale, or relocation and an address at which the records may be obtained from the physician terminating or selling the practice or relocating or from another licensed physician or osteopathic physician. A copy of this notice shall also be submitted to the Board of Medicine within one (1) month from the date of termination, sale, or relocation of the practice. The licensed physician may, but is not required to, place a sign in a conspicuous location on the facade of the physician’s office or notify patients by letter of the termination, sale, or relocation of the practice. The sign or notice shall advise the licensed physician’s patients of their opportunity to transfer or receive their records.

Specific Authority 458.309, 456.058 FS. Law Implemented 456.058 FS. History–New 7-3-89, Formerly 21M-26.002, Amended 11-4-93, 1-17-94,
Formerly 61F6-26.002, Amended 1-26-97, Formerly 59R-10.002, Amended 3-7-01.

64B8-10.003 Costs of Reproducing Medical Records.

(1) Any person licensed pursuant to Chapter 458, Florida Statutes, required to release copies of patient medical records may condition such release upon payment by the requesting party of the reasonable costs of reproducing the records.

 (2) Reasonable costs of reproducing copies of written or typed documents or reports shall not be more than the following:
(a) For the first 25 pages, the cost shall be $1.00 per page.
(b) For each page in excess of 25 pages, the cost shall be 25 cents.

(3) Reasonable costs of reproducing x-rays, and such other special kinds of records shall be the actual costs. The phrase “actual costs” means the cost of the material and supplies used to duplicate the record, as well as the labor costs and overhead costs associated with such duplication.

Specific Authority 458.309 FS. Law Implemented 456.061, 456.058, 458.331(1) FS. History–New 11-17-87, Amended 5-12-88, Formerly
21M-26.003, 61F6-26.003, 59R-10.003.
64B8-10.004 Legal Representative Defined.

Legal representative is defined for the purpose of Section 456.057, Florida Statutes, as a patient’s attorney who has been designated by the patient to receive copies of the patient’s medical records; any legally recognized guardian of the patient; any court appointed representative of the patient; or any other person either designated by the patient or by a court of competent jurisdiction to receive copies of the patient’s medical records.

Specific Authority 456.057 FS. Law Implemented 456.057 FS. History–New 2-19-01.

456.057  Ownership and control of patient records; report or copies of records to be furnished

(1)  As used in this section, the term “records owner” means any health care practitioner who generates a medical record after making a physical or mental examination of, or administering treatment or dispensing legend drugs to, any person; any health care practitioner to whom records are transferred by a previous records owner; or any health care practitioner’s employer, including, but not limited to, group practices and staff-model health maintenance organizations, provided the employment contract or agreement between the employer and the health care practitioner designates the employer as the records owner.

(2)  As used in this section, the terms “records owner,” “health care practitioner,” and “health care practitioner’s employer” do not include any of the following persons or entities; furthermore, the following persons or entities are not authorized to acquire or own medical records, but are authorized under the confidentiality and disclosure requirements of this section to maintain those documents required by the part or chapter under which they are licensed or regulated:

(a)  Certified nursing assistants regulated under part II of chapter 464.

(b)  Pharmacists and pharmacies licensed under chapter 465.

(c)  Dental hygienists licensed under s. 466.023.

(d)  Nursing home administrators licensed under part II of chapter 468.

(e)  Respiratory therapists regulated under part V of chapter 468.

(f)  Athletic trainers licensed under part XIII of chapter 468.

(g)  Electrologists licensed under chapter 478.

(h)  Clinical laboratory personnel licensed under part III of chapter 483.

(i)  Medical physicists licensed under part IV of chapter 483.

(j)  Opticians and optical establishments licensed or permitted under part I of chapter 484.

(k)  Persons or entities practicing under s. 627.736(7).

(3)  As used in this section, the term “records custodian” means any person or entity that:

(a)  Maintains documents that are authorized in subsection (2); or

(b)  Obtains medical records from a records owner.

(4)  Any health care practitioner’s employer who is a records owner and any records custodian shall maintain records or documents as provided under the confidentiality and disclosure requirements of this section.

(5)  This section does not apply to facilities licensed under chapter 395.

(6)  Any health care practitioner licensed by the department or a board within the department who makes a physical or mental examination of, or administers treatment or dispenses legend drugs to, any person shall, upon request of such person 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, chapter 490 psychological, or chapter 491 psychotherapeutic 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 shall be provided directly to a subsequent treating psychiatrist. The furnishing of such report or copies shall not be conditioned upon payment of a fee for services rendered.

(7)(a)  Except as otherwise provided in this section and in s. 440.13(4)(c), such 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. However, such records may be furnished without written authorization under the following circumstances:

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

2.  When compulsory physical examination is made pursuant to Rule 1.360, Florida Rules of Civil Procedure, in which case copies of the medical records shall be furnished to both the defendant and the plaintiff.

3.  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.

4.  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.

5.  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 reporting requirements of s. 395.1027 and the professional organization that certifies poison control centers in accordance with federal law.

(b)  Absent a specific written release or authorization permitting utilization of patient information for solicitation or marketing the sale of goods or services, any use of that information for those purposes is prohibited.

(8)  Except in a medical negligence action or administrative proceeding 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.

(9)(a)1.  The department may obtain patient records pursuant to a subpoena without written authorization from the patient if the department and the probable cause panel of the appropriate board, if any, find reasonable cause to believe that a health care practitioner has excessively or inappropriately prescribed any controlled substance specified in chapter 893 in violation of this chapter or any professional practice act or that a health care practitioner has practiced his or her profession below that level of care, skill, and treatment required as defined by this chapter or any professional practice act and also find that appropriate, reasonable attempts were made to obtain a patient release.

2.  The department may obtain patient records and insurance information pursuant to a subpoena without written authorization from the patient if the department and the probable cause panel of the appropriate board, if any, find reasonable cause to believe that a health care practitioner has provided inadequate medical care based on termination of insurance and also find that appropriate, reasonable attempts were made to obtain a patient release.

3.  The department may obtain patient records, billing records, insurance information, provider contracts, and all attachments thereto pursuant to a subpoena without written authorization from the patient if the department and probable cause panel of the appropriate board, if any, find reasonable cause to believe that a health care practitioner has submitted a claim, statement, or bill using a billing code that would result in payment greater in amount than would be paid using a billing code that accurately describes the services performed, requested payment for services that were not performed by that health care practitioner, used information derived from a written report of an automobile accident generated pursuant to chapter 316 to solicit or obtain patients personally or through an agent regardless of whether the information is derived directly from the report or a summary of that report or from another person, solicited patients fraudulently, received a kickback as defined in s. 456.054, violated the patient brokering provisions of s. 817.505, or presented or caused to be presented a false or fraudulent insurance claim within the meaning of s. 817.234(1)(a), and also find that, within the meaning of s. 817.234(1)(a), patient authorization cannot be obtained because the patient cannot be located or is deceased, incapacitated, or suspected of being a participant in the fraud or scheme, and if the subpoena is issued for specific and relevant records.

4.  Notwithstanding subparagraphs 1.-3., when the department investigates a professional liability claim or undertakes action pursuant to s. 456.049 or s. 627.912, the department may obtain patient records pursuant to a subpoena without written authorization from the patient if the patient refuses to cooperate or if the department attempts to obtain a patient release and the failure to obtain the patient records would be detrimental to the investigation.

(b)  Patient records, billing records, insurance information, provider contracts, and all attachments thereto obtained by the department pursuant to this subsection shall be used solely for the purpose of the department and the appropriate regulatory board in disciplinary proceedings. This section does not limit the assertion of the psychotherapist-patient privilege under s. 90.503 in regard to records of treatment for mental or nervous disorders by a medical practitioner licensed pursuant to chapter 458 or chapter 459 who has primarily diagnosed and treated mental and nervous disorders for a period of not less than 3 years, inclusive of psychiatric residency. However, the health care practitioner shall release records of treatment for medical conditions even if the health care practitioner has also treated the patient for mental or nervous disorders. If the department has found reasonable cause under this section and the psychotherapist-patient privilege is asserted, the department may petition the circuit court for an in camera review of the records by expert medical practitioners appointed by the court to determine if the records or any part thereof are protected under the psychotherapist-patient privilege.

(10)(a)  All patient records obtained by the department and any other documents maintained by the department which identify the patient by name are confidential and exempt from s. 119.07(1) and shall be used solely for the purpose of the department and the appropriate regulatory board in its investigation, prosecution, and appeal of disciplinary proceedings. The records shall not be available to the public as part of the record of investigation for and prosecution in disciplinary proceedings made available to the public by the department or the appropriate board.

(b)  Notwithstanding paragraph (a), all patient records obtained by the department and any other documents maintained by the department which relate to a current or former Medicaid recipient shall be provided to the Medicaid Fraud Control Unit in the Department of Legal Affairs, upon request.

(11)  All records owners shall develop and implement policies, standards, and procedures to protect the confidentiality and security of the medical record. Employees of records owners shall be trained in these policies, standards, and procedures.

(12)  Records owners are responsible for maintaining a record of all disclosures of information contained in the medical record to a third party, including the purpose of the disclosure request. The record of disclosure may be maintained in the medical record. The third party to whom information is disclosed is prohibited from further disclosing any information in the medical record without the expressed written consent of the patient or the patient’s legal representative.

(13)  Notwithstanding the provisions of s. 456.058, records owners shall 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.

(14)  Notwithstanding the provisions of s. 456.058, records owners shall notify the appropriate board office when they are terminating practice, retiring, or relocating, and no longer available to patients, specifying who the new records owner is and where medical records can be found.

(15)  Whenever a records owner has turned records over to a new records owner, the new records owner shall be responsible for providing a copy of the complete medical record, upon written request, of the patient or the patient’s legal representative.

(16)  Licensees in violation of the provisions of this section shall be disciplined by the appropriate licensing authority.

(17)  The Attorney General is authorized to enforce the provisions of this section for records owners not otherwise licensed by the state, through injunctive relief and fines not to exceed $5,000 per violation.

(18)  A health care practitioner or records owner furnishing copies of reports or records or making the reports or records available for digital scanning pursuant to this section shall charge no more than the actual cost of copying, including reasonable staff time, or the amount specified in administrative rule by the appropriate board, or the department when there is no board.

(19)  Nothing in this section shall be construed to limit health care practitioner consultations, as necessary.

(20)  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.

(21)  The board, or department when there is no board, may temporarily or permanently appoint a person or entity as a custodian of medical records in the event of the death of a practitioner, the mental or physical incapacitation of the practitioner, or the abandonment of medical records by a practitioner. The custodian appointed shall comply with all provisions of this section, including the release of patient records.

  1. –s. 1, ch. 79-302; s. 1, ch. 82-22; s. 1, ch. 83-108; s. 81, ch. 83-218; ss. 14, 119, ch. 83-329; s. 2, ch. 84-15; s. 41, ch. 85-175; s. 4, ch. 87-333; s. 9, ch. 88-1; s. 2, ch. 88-208; s. 14, ch. 88-219; s. 6, ch. 88-277; s. 10, ch. 88-392; s. 2, ch. 89-85; s. 14, ch. 89-124; s. 28, ch. 89-289; s. 1, ch. 90-263; s. 11, ch. 91-137; s. 6, ch. 91-140; s. 12, ch. 91-176; s. 4, ch. 91-269; s. 62, ch. 92-33; s. 32, ch. 92-149; s. 23, ch. 93-129; s. 315, ch. 94-119; ss. 90, 91, ch. 94-218; s. 308, ch. 96-406; s. 1084, ch. 97-103; s. 82, ch. 97-261; s. 6, ch. 98-166; s. 12, ch. 99-349; s. 86, ch. 99-397; s. 79, ch. 2000-160; s. 9, ch. 2000-163; s. 114, ch. 2000-318; s. 9, ch. 2001-222; ss. 69, 140, ch. 2001-277; s. 18, ch. 2003-416; s. 4, ch. 2005-256; s. 1, ch. 2006-271.

  2. –Former s. 455.241; s. 455.667.

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