Medical and Substance Abuse Clinical Files

DEPARTMENT OF CORRECTIONS

RULE NO: RULE TITLE
33-401.701: Medical and Substance Abuse Clinical Files

NOTICE OF CHANGE

Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 35 No. 9, March 6, 2009 issue of the Florida Administrative Weekly.

33-401.701 Medical and Substance Abuse Clinical Files.

(1) The Department of Corrections Office of Health Services shall maintain a comprehensive medical file (including medical, dental and mental health components) on every person committed to the custody and care of the Florida Department of Corrections. Information included in the inmate’s medical file is protected health information and shall be used or disclosed in accordance with the Health Insurance Portability and Accountability Act Privacy Rule of 1996, (HIPAA) and Florida law. The Department of Corrections shall also maintain a comprehensive substance abuse file, should one exist, on every inmate who receives substance abuse program services person committed to the custody and care of the Florida Department of Corrections. Information included in the inmate’s substance abuse file is confidential in accordance with 42 C.F.R. Part II, the Health Insurance Portability and Accountability Act Privacy Rule of 1996, (HIPAA), and Florida law. The Department of Corrections’ Reception and Medical Center Hospital shall maintain an inpatient hospital medical file on every inmate admitted for care and treatment at Reception Medical Center Hospital.

(2) Definitions.

(a) No change.

(b) Designated Records Set – refers to an inmate’s medical, mental health, and dental files, Reception Medical Center Hospital’s inpatient hospital file, and substance abuse clinical files that are maintained by the Department.

(c) Department workforce – includes employees, volunteers, interns, trainees and other persons whose conduct, in the performance of work for the Department, is under the direct control of such the Department, whether or not they are paid by the Department.

(d) through (e) No change.

(f) Hospital file – as used in this rule refers to an inmate’s inpatient hospital patient records created and maintained by Reception Medical Center Hospital.

(g)(f) Medical file – as used in this rule refers to the inmate’s medical, mental health, and dental files maintained by the department.

(h)(g) Personal Representative – as used in this rule, means, with respect to a deceased inmate, an executor, administrator, or other person with authority under Florida law to act on behalf of the deceased inmate or the inmate’s estate. With respect to a living inmate, a personal representative means a health care surrogate, proxy, guardian, or other person with authority under Florida law to make decisions related to the inmate’s health care.

(i) Privacy Officer – as used in this rule, refers to a designated employee in the Office of Health Services who is responsible for the development and implementation of the policies and procedures related to the HIPAA Privacy Rule. The privacy officer is the Department’s contact person for HIPAA.

(h) through (l) renumbered (j) through (n) No change.

(3) Inmate and offender access to their own protected health information in a designated records set.

(a) Except as otherwise provided in this rule, an inmate shall be allowed to have access to his or her own protected health information contained in a designated records set. An inmate desiring access to his or her own medical file or Reception Medical Center hospital file shall submit a written request using Form DC6-236, Inmate Request, to the health services administrator or his or her designee. An inmate desiring access to his own substance abuse clinical file shall submit a written request using DC6-236, Inmate Request, to the substance abuse program manager or his or her designee. Form DC6-236 is incorporated by reference in Rule 33-103.019, F.A.C.

(b) through (g) No change.

(h) Providing Access

1. Before any inmate reviews his or her medical file, hospital file, or substance abuse clinical file the Department will verify the inmate’s identity using the inmate’s ID card.

2. Medical and hospital files and substance abuse clinical files must be reviewed in a secure area in the presence of health record staff or the health service administrator.

3. No change.

(i) No change.

(4) through (9) No change.

(10) Use and disclosure of protected health information.

(a) Inmate protected health information shall be used or disclosed in accordance with the Health Insurance Portability and Accountability Act Privacy Rule of 1996, (HIPAA) and Florida law.

(b) Requests for access to a current inmate’s medical file protected health information shall be submitted to the health services administrator at the institution where the inmate is housed. Requests for access to a former inmate’s medical file protected health information shall be submitted to: Inactive Medical Records, Reception and Medical Center, P.O. Box 628, Lake Butler, Florida 32054. Requests for access to an inmate’s hospital file shall be submitted to: Reception and Medical Center Hospital, Attention: Hospital Administrator, P.O. Box 628, Lake Butler, Florida 32054.

(c) No change.

(d) If use or disclosure of an inmate’s protected health information is not otherwise permitted by law, an inmate must authorize the use or disclosure by giving written consent using Form DC4-711B, Consent and Authorization for Use and Disclosure, for Inspection and Release of Confidential Information, or a legally approved, HIPAA compliant release of protected health information form from another governmental agency. Form DC4-711B is incorporated by reference in Rule 33-601.901, F.A.C.

(e) Form The DC4-711B or other authorization shall be submitted with the written request for access to an inmate’s protected health information. A copy of the authorization shall be provided to the inmate and the inmate shall acknowledge receipt of the copy by signing in the appropriate location on the authorization. The authorization and acknowledgement of receipt of copy shall become a part of the inmate’s medical file.

(f) Form DC4-711B Consent and Authorization for Use and Disclosure, Inspection and Release of Confidential Information must be notarized when the authorization is not from a current inmate personally known to the witness or is from a source external to the Department. All authorization forms shall be witnessed by at least one person who can verify the fact that he witnessed the signing of the authorization by the inmate and that, to the best of his knowledge, the inmate knew what was signed.

(g) No change.

(h) In accordance with 45 C.F.R. § 164.502, a personal representative of a deceased inmate or a deceased inmate’s estate shall have access to or authorize the disclosure of the deceased inmate’s protected health information that is relevant to the personal representative’s legal authority to act on behalf of the deceased inmate or the deceased inmate’s estate. A certified copy of a letter of administration, court order, or other document demonstrating the legal such authority of the personal representative shall be filed in the inmate’s medical file and Form DC4-711B, Consent and Authorization for Use and Disclosure, for Inspection and Release of Confidential Information must be signed by a personal representative.

(i) In accordance with 45 C.F.R. § 164.502, a personal representative of a living inmate shall have access to or authorize the disclosure of the inmate’s protected health information that is relevant to the personal representative’s legal authority to make health care decisions on behalf of the inmate. Form DC4-711B, Consent and Authorization for Use and Disclosure, for Inspection and Release of Confidential Information shall be signed by the inmate or the inmate’s personal representative in accordance with Florida law. A copy of a health care surrogate form, durable power of attorney, or other the document demonstrating the personal representative’s authority shall be filed in the inmate’s medical file.

(j) In addition to the access described above, in accordance with Section 395.3025, Florida Statutes, an inmate’s guardian, curator, personal representative, or in the absence of one of those persons, next of kin, shall have access to the protected health information contained in an inmate’s hospital file created and maintained by the Reception Medical Center Hospital after the discharge of the inmate.

(j) through (l) renumbered (k) through (m) No change.

(11) through (12) No change.

Rulemaking Specific Authority 944.09, 945.10, 945.6034 FS. Law Implemented 119.07, 944.09, 945.10, 945.25, 945.6034 FS., 42 USCS 290 ee-3, 45 CFR Parts 160 and 164. History–New________.