The purpose and effect of the proposed rule is to delete those provisions related to medical and substance abuse files that are being moved to proposed Rule 33-401.701, F.A.C., via the rulemaking process.

DEPARTMENT OF CORRECTIONS

Rule No.: RULE TITLE
33-601.901: Confidential Records
PURPOSE AND EFFECT: The purpose and effect of the proposed rule is to delete those provisions related to medical and substance abuse files that are being moved to proposed Rule 33-401.701, F.A.C., via the rulemaking process.
SUMMARY: The rule is amended to remove language related to medical and substance abuse clinical files, as those provisions are being relocated to proposed Rule 33-401.701, F.A.C.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The agency has determined that this rule will not have an impact on small business. A SERC has not been prepared by the agency.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 20.315, 944.09, 945.10 FS.
LAW IMPLEMENTED: 119.07, 944.09, 945.10, 945.25 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Kendra Lee Jowers, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500

THE FULL TEXT OF THE PROPOSED RULE IS:

33-601.901 Confidential Records.

(1) Inmate and offender access to records or information.

(a) No change.

(b) Inmate and offender access to their own medical or substance abuse clinical files is addressed in Rule 33-401.701, F.A.C records.

1. Definitions.

a. “Medical record” as used in this rule includes the inmate’s medical, mental health, and dental files maintained by the department.

b. “Protected health information” or “PHI” as used in this rule means individually identifiable health information about an inmate or offender.

c. “Psychotherapy notes” as used in this rule means notes recorded by a mental health professional documenting or analyzing the contents of conversation during a private or group session. The term does not include medication prescription and monitoring, session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following: diagnosis, functional status, treatment plan, symptoms, prognosis, and progress to date.

d. “Substance abuse clinical record” as used in this rule means the department inmate file containing all written documents and records, including department forms compiled to detail an inmate’s substance abuse history, substance abuse screening, assessment, intervention, and other substance abuse services, including the results of urinalysis testing done for treatment, program participation, and admission and discharge summaries.

e. “Substance abuse progress notes” as used in this rule means notes recorded by a substance abuse health care professional documenting or analyzing the contents of conversation during a private or group session. The term does not include session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following: diagnosis, functional status, treatment plan, symptoms, prognosis, and progress to date.

2. An inmate shall be allowed to have access to his own medical record and, if such exists, his own substance abuse clinical record. An inmate desiring access to his own medical record shall submit a written request to the health services administrator or his designee; an inmate desiring access to his own substance abuse clinical record shall submit a written request to the substance abuse program manager or his designee.

3. The department does not maintain medical records or substance abuse clinical records on offenders under community supervision. Access to records maintained by treatment providers under contract with the department should be requested by contacting the treatment provider.

4.a. Inmates shall have no access to psychotherapy notes or substance abuse progress notes maintained in the department’s records.

b. Inmates and offenders shall have no access to health information compiled in reasonable anticipation of, or for use in, a civil, criminal, or administrative action or proceeding.

5. The request for access shall be denied in whole or in part due to any of the following reasons:

a. The request is for records or information identified in subparagraph 4. above.

b. The request is for PHI that was obtained from someone other than a health care provider under a promise of confidentiality and the access requested would with reasonable likelihood reveal the source of the information.

c. The request is for information not maintained or no longer maintained by the department in its files.

d. There has been a determination by a licensed or certified health care professional that:

I. The requested access is reasonably likely to endanger the life or physical safety of the inmate or another person;

II. The requested access is to PHI that makes reference to another person (other than a health care provider) and such access is reasonably likely to cause substantial harm to such other person; or

III. The access is requested by a personal representative of the inmate and such access is likely to cause substantial harm to the inmate.

6. All requests shall be granted, including providing access or copies or both, or denied, in whole or in part, by the health services administrator or his designee or substance abuse program manager or his designee in writing within 30 days of the date of receipt of the request, except that where the requested records are not maintained on-site, the department shall provide or deny access, in whole or in part, within 60 days from receipt of the request. If the department is unable to grant or deny, in whole or in part, the request for access within the 30 or 60 day time periods, the department is authorized to extend the time for such action an additional 30 days by providing the inmate a written statement that the time period has been extended for 30 days and the reason(s) for the extension. This extension is available only one time.

7. Denials must provide:

a. The basis for the denial;

b. Information on where the requested information is maintained if sub-subparagraph 5.c. applies, and the department knows where the information is maintained;

c. Notification that the inmate may request a review of the denial by submitting a written request to the health services administrator or his designee in the case of medical records, or the substance abuse program manager or his designee in the case of substance abuse clinical records; and

d. That the inmate may grieve the denial through the inmate grievance process pursuant to Chapter 33-103, F.A.C.

8. Upon written request of the inmate to the staff member designated above, denials based on sub-subparagraph 5.d. shall be reviewed by a licensed or certified health care professional who is designated by the health services administrator or his designee or substance abuse program manager or his designee, and who did not participate in the original decision to deny the request. Review of the denial must be completed within a reasonable time after receipt of the request for review. Immediately upon determination on review, the inmate shall be notified in writing of the decision. The determination on review shall be followed by the department.

9. Where a request for access to an inmate’s medical record or substance abuse clinical record is denied in part, the department shall provide access to the requested record after excluding the information for which access was denied.

(c) Copies will be provided upon receipt of payment as provided in subsection (2) of this rule, except that when providing the inmate a copy of the requested information would jeopardize either the health, safety, security, custody of the inmate or of other inmates; or the safety of any officer, employee, or other person at the correctional institution or a person responsible for the transporting of the inmate, no copies shall be provided. A denial of copies on this basis shall not be subject to review under subparagraph (b)8. above.

(2) No change.

(3) The following records or information contained in department files shall be confidential and shall be released for inspection or duplication only as authorized in this rule or in Rule 33-401.701, F.A.C.:

(a) Medical reports, opinions, memoranda, charts or any other medical record of an inmate or offender, including dental and medical classification reports as well as clinical drug treatment and assessment records; letters, memoranda or other documents containing opinions or reports on the description, treatment, diagnosis or prognosis of the medical or mental condition of an inmate or offender; the psychological screening reports contained in the admission summary; the psychological and psychiatric evaluations and reports on inmates or offenders; health screening reports; Mentally Disordered Sex Offender Status Reports. Other persons may review medical records only when necessary to ensure that the inmate’s or offender’s overall health care needs are met, or upon a specific written authorization from the inmate or offender whose records are to be reviewed, or as provided by law. If a request for inmate or offender medical records is submitted upon consent or authorization given by the patient inmate or offender, Form DC4-711B, the department’s Consent and Authorization for Use and Disclosure, Inspection and Release of Confidential Information, Form DC4-711B, or a legally approved, HIPAA compliant release of protected health information form from another governmental agency shall be utilized in accordance with Rule 33-401.701, F.A.C. Form DC4-711B is hereby incorporated by reference. Copies of this form are available from the Forms Control Administrator, Office of Research, Planning and Support Services, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500. The effective date of this form is November 27, 2007. Offenders under supervision, or previously under supervision, who desire information from their own records, shall be referred to the agency or office originating the report or document to obtain such information.

(b) through (8) No change.

(9) Any information, whether recorded or not, concerning the identity, diagnosis, prognosis or treatment of any inmate or offender which is maintained in connection with the performance of any alcohol or drug abuse prevention or treatment function shall be confidential and shall be disclosed only as follows:

(a) With the prior written consent of the inmate or offender. The written consent shall include the following information:

1. The specific name or general designation of the program or person permitted to make the disclosure;

2. The name or title of the individual or the name of the organization to which disclosure is to be made;

3. The name of the inmate or offender;

4. The purpose of the disclosure;

5. How much and what kind of information is to be disclosed;

6. The signature of the inmate or offender; or, when required for an inmate or offender who is incompetent or deceased, the signature of a person authorized to sign in lieu of the inmate or offender;

7. The date on which the consent is signed;

8. A statement that the consent is subject to revocation at any time except to the extent that the program or person which is to make the disclosure has already acted in reliance on it.

9. The date, event, or condition upon which the consent will expire if not revoked before. This date, event, or condition must ensure that the consent will last no longer than reasonably necessary to serve the purpose for which it is given.

If a request for inmate medical records is submitted upon consent given by the patient inmate/offender, the department’s Consent and Authorization for Use and Disclosure, Inspection and Release of Confidential Information, Form DC4-711B, or a legally approved, HIPAA compliant release of protected health information form from another governmental agency shall be utilized in order to obtain medical records held by the department.

(b) Pursuant to 42 C.F.R. Part 2, the department is authorized to disclose information about an inmate or offender to those persons within the criminal justice system who have made participation in the program a condition of the disposition of any criminal proceedings against the inmate or offender or of the inmate or offender’s parole or other release from custody if:

1. The disclosure is made only to those individuals within the criminal justice system who have a need for the information in connection with their duty to monitor the inmate or offender’s progress; and

2. The inmate or offender has signed Form DC4-711B meeting the requirements of paragraph (9)(a) except for the revocation provision in subparagraph (9)(a)8. This written consent shall state the period during which it remains in effect. This period shall be reasonable, taking into account:

a. The anticipated length of the treatment;

b. The type of criminal proceeding involved, the need for the information in connection with the final disposition of that proceeding, and when the final disposition will occur; and

c. Such other factors as the program, the inmate or offender, and the persons who will receive the disclosure consider pertinent. The written consent shall state that it is revocable upon the passage of a specified amount of time or the occurrence of a specified, ascertainable event. The time or occurrence upon which consent becomes revocable shall be no later than the final disposition of the action in connection with which consent was given.

(c) A disclosure may not be made on the basis of a consent which:

1. Has expired;

2. On its face substantially fails to conform to any of the requirements set forth in paragraph (9)(a) above:

3. Is known to have been revoked; or

4. Is known, or through a reasonable effort could be known, by the person holding the records to be materially false.

(d) Each disclosure made with the inmate or offender written consent shall be accompanied by the following written statement:

This information has been disclosed to you from records protected by federal confidentiality rules (42 C.F.R. Part 2). The federal rules prohibit you from making any further disclosure of this information unless further disclosure is expressly permitted by the written consent of the person to whom it pertains or as otherwise permitted by 42 C.F.R. Part 2. A general authorization for the release of medical or other information is NOT sufficient for this purpose. The federal rules restrict any use of the information to criminally investigate or prosecute any alcohol or drug abuse patient.

(e) Whether or not the inmate or offender has given written consent, 42 C.F.R. Part 2 permits disclosure of information as follows:

1. To medical personnel to the extent necessary to meet a medical emergency and for continuity of care;

2. To qualified personnel for the purpose of conducting scientific research, management audits, financial audits, or program evaluation, but such personnel shall not identify, directly or indirectly, any individual inmate or offender in any report of such research, audit, or evaluation, or otherwise disclose inmate or offender identities in any manner.

3. To communicate within a program or between a program and an entity having direct administrative control over that program;

4. To law enforcement officers concerning crimes on program premises or against program personnel, or when a threat to commit such a crime has been made;

5. Reports of suspected child abuse and neglect; and

6. If authorized by a court order.

(10) Each employee of the Department of Corrections shall maintain as confidential all medical and mental health, including substance abuse information, regarding any inmate or offender that the employee obtains in conjunction with his or her duties and responsibilities, and shall not disseminate the information or discuss the medical, mental health or substance abuse condition of the inmate or offender with any person except persons directly necessary to the performance of the employee’s duties and responsibilities. An employee who has been designated as a member of the healthcare transfer team or is part of a mental health or substance abuse treatment team shall not disseminate inmate medical or substance abuse information or discuss the medical or mental health or substance abuse condition of an inmate with any person except other members of the healthcare transfer team, medical, mental health or substance abuse staff, upper level management at the institution or facility level, regional level and central office level, inspectors from the Inspector General’s Office, or department attorneys. Breach of this confidentiality shall subject the employee to disciplinary action. Each employee shall acknowledge receipt and review of Form DC2-813, Acknowledgement of Responsibility to Maintain Confidentiality of Medical Information, indicating that he understands the medical and substance abuse confidentiality requirements. Form DC2-813 is hereby incorporated by reference. Copies of this form are available from the Forms Control Administrator, Office of Research, Planning and Support Services, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500. The effective date of this form is 2-9-06.

(11) Each inmate assigned as an inmate worker, inmate assistant, substance abuse peer facilitator, or other assignment involving possible contact with health or substance abuse information about other inmates shall maintain as confidential all health or substance abuse information that he sees or hears while performing his duties and responsibilities, and shall not disseminate the information or discuss the medical or substance abuse information with any person except health care staff or substance abuse program staff. Failure to keep health or substance abuse information confidential and private shall subject the inmate to disciplinary action. Each inmate assigned as an inmate worker, inmate assistant, substance abuse peer facilitator, or other assignment involving possible contact with health or substance abuse information about other inmates shall acknowledge receipt and review of Form DC1-206, Inmate Acknowledgement of Responsibility to Maintain Confidentiality of Health or Substance Abuse Information, indicating that he understands the medical and substance abuse confidentiality requirements. Form DC1-206 is hereby incorporated by reference. Copies of this form are available from the Forms Control Administrator, Office of Research, Planning and Support Services, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500. The effective date of this form is 7-8-03.

Rulemaking Specific Authority 20.315, 944.09, 945.10 FS. Law Implemented 119.07, 944.09, 945.10, 945.25 FS., 42 USCS 290 ee-3, 45 CFR Parts 160 and 164. History–New 10-8-76, Amended 6-10-85, Formerly 33-6.06, Amended 1-12-89, 7-21-91, 9-30-91, 6-2-92, 8-4-93, 6-12-96, 10-15-97, 6-29-98, Formerly 33-6.006, Amended 9-19-00, 7-8-03, 2-9-06, 11-27-07,_________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Dean Aufderheide, Mental Health Services Director
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Walter McNeil, Secretary
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 25, 2010
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: August 20, 2010