By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law and Hartley Brooks, Law Clerk, The Health Law Firm
On July 1, 2023, an amendment to the Florida Electronic Health Records Exchange Act went into effect that prohibits any storage of health care data outside the continental United States, United States territories, or Canada.
The amendment came from Florida Senate Bill 645, signed into law by the Governor on May 8, 2023, concerning the interests of foreign countries. Click here to read a summary of the bill. The new legislation also amends the Health Care Licensing Procedures Act to require licensees to submit an affidavit confirming they comply with the new law prohibiting data storage outside the specified geographic areas. The new law created new sections of Florida Statutes, including new sections 287.138 and 288.007, but also amending various sections of Chapter 697, Florida Statutes. However, the amendment that affects Florida Health providers most directly is the amendment to Section 408.051, Florida Statutes “Florida Electronic Health Records Exchange Act.”
For the full text of the bill that was enacted, Committee Substitute for Committee Substitute for Senate Bill (CS/CS/SB) 645, click here.
The new law states that all offsite storage of patient information must be physically maintained within the United States, its territories, or Canada.
What Could Possibly Be Its Purpose?
What is the purpose of this unusual regressive law impacting international commerce and commerce across state lines? According to the official legislative purpose posted on the Florida Legislature’s website:
[It] generally restricts the issuance of government contracts or economic development incentives to, or real property ownership by, foreign principals, which are certain individuals and entities associated with foreign countries of concern. Foreign countries of concern include the People’s Republic of China, the Russian Federation, the Islamic Republic of Iran, the Democratic People’s Republic of Korea, the Republic of Cuba, the Venezuelan regime of Nicolás Maduro, and the Syrian Arab Republic.
With respect to conveyances of real property in this state, the bill generally:
Prohibits foreign principals from owning or acquiring agricultural land in the state.
Prohibits foreign principals from owning or acquiring any interest in real property within 10 miles of any military installation or critical infrastructure in the state.
Prohibits China, Chinese Communist Party or other Chinese political party officials or members, Chinese business organizations, and persons domiciled in China, but who are not citizens or lawful permanent residents of the U.S., from purchasing or acquiring any interest in real property in the state.
Provides limited exceptions from the ownership restrictions for the purchase of one residential property that is not on or within 5 miles of any military installation in the state.
The bill also amends:
The Florida Electronic Health Records Act, to require that the offsite storage of certain personal medical information be physically maintained in the continental U.S., U.S. territories, or Canada.
The Health Care Licensing Procedures Act, to require licensees to sign affidavits attesting that all patient information stored by them is being physically maintained in the continental U.S., U.S. territories, or Canada.
Finally, the bill amends the statute criminalizing threats and extortion, to provide that a person who commits a violation of the statute, and at the time is acting as a foreign agent with the intent of benefitting a foreign country of concern, commits a first degree felony.
So you see, it does make sense after all!
Wow! Looks like the Florida Legislature really wants to show all those puny foreign countries that you can’t do business with Florida any more! We’ll show you. We’ll adopt our own foreign policies. I can hardly wait for the constitutional challenges to this one to start rolling in.
Who Does It Affect?
According to the law, the individuals and entities covered under this law are all healthcare providers regulated by the Florida Agency for Health Care Administration (AHCA) or teh Florida Department of Health (DOH). This includes physicians, hospitals, dentists, nurse practitioners, physician assistants, nurses, nursing home administrators, pharmacists, speech pathologists, nursing homes, hospitals, health care clinics, pharmacies, mental health providers, and others.
The regulation changes purport to apply to the Health Insurance Portability and Accountability Act (HIPAA) policies.
Important Caveat.
Hey, don’t shoot us, we’re merely the messengers!
Contact Experienced Health Law Attorneys.
The Health Law Firm routinely represents physicians and medical groups on EHR issues. It also represents pharmacists, pharmacies, physicians, nurses and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys advise on legal and regulatory matters involving health professionals and health facilities. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.
To contact The Health Law Firm, please call (407) 331-6620 or toll free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.
Sources:
“An overview of Florida’s Electronic Health Records Exchange Act.” Healthcare Compliance Pros. https://www.healthcarecompliancepros.com/blog/an-overview-of-floridas-electronic-health-records-exchange-act
Dearborn, Grant P., and Laura Johnson Evans. “Client Alert: Florida Electronic Health Records Exchange Act Effective July 1.” Shumaker Loop & Kendrick. (14 June 2023). https://www.lexology.com/library/detail.aspx?g=f41b0151-dfdb-4fd9-b677-6a9674d9ae48&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=ahla+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2023-06-27&utm_term=
Judiciary Committee. “CS/CS/SB 264 – Interests of Foreign Countries Summary.” The Florida Senate. https://www.flsenate.gov/Committees/BillSummaries/2023/html/3145
2022 Florida Statutes. “408.051 Florida Electronic Health Records Exchange Act.” The Florida Senate. https://www.flsenate.gov/laws/statutes/2022/408.051
About the Authors: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Hartley Brooks is a law clerk at The Health Law Firm. She is preparing to attend law school. The Health Law Firm’s main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620; Toll-Free (888) 331-6620.
Qualification: Editorial remarks and opinions contained in this blog are solely those of the main author, George F. Indest III, and not of anyone else.
Current Open Positions with The Health Law Firm. The Health Law Firm always seeks qualified individuals interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: [email protected] or fax them to (407) 331-3030.
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