House Bill hb0301e1

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                                           HB 301, First Engrossed



  1                      A bill to be entitled

  2         An act relating to the testing of inmates for

  3         HIV; creating s. 945.355, F.S.; defining the

  4         term "HIV test"; requiring the Department of

  5         Corrections to perform an HIV test before an

  6         inmate is released if the inmate's HIV status

  7         is unknown; providing certain exceptions;

  8         requiring that the Department of Corrections

  9         notify the county health department where the

10         inmate plans to reside following release if the

11         inmate is HIV positive; requiring the

12         department to provide special transitional

13         assistance to an inmate who is HIV positive;

14         requiring the department to report to the

15         Legislature; amending s. 945.10, F.S.;

16         requiring certain medical records be released

17         to the Department of Health and the county

18         health department where an inmate who is HIV

19         positive plans to reside; reenacting s.

20         945.10(1)(a), F.S., relating to mental health,

21         medical, or substance abuse records of an

22         inmate; amending s. 381.004, F.S.; providing

23         that informed consent is not required for an

24         HIV test of an inmate prior to the inmate's

25         release; amending s. 944.704, F.S.; providing

26         additional duties for the department with

27         respect to transition assistance for inmates

28         who are HIV positive; providing an effective

29         date.

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                                           HB 301, First Engrossed



  1         WHEREAS, HIV and AIDS infections are one of the state's

  2  most critical challenges, with Florida having the third

  3  highest number of AIDS cases in the nation and the second

  4  highest number of pediatric AIDS cases, and

  5         WHEREAS, the prevalence of HIV and AIDS cases in the

  6  state's prisons exceeds the prevalence of HIV and AIDS in the

  7  general population, and

  8         WHEREAS, between 1989 and 1997, death due to AIDS

  9  accounted for over half of inmate deaths in the state's

10  prisons, and

11         WHEREAS, recent advances in treatment for HIV and AIDS

12  can potentially reduce the number of opportunistic infections

13  and associated medical costs and delay the onset of death due

14  to the disease, and

15         WHEREAS, referral to appropriate medical and social

16  services upon the release of an inmate can play a crucial role

17  in the treatment, care, and secondary prevention efforts, NOW,

18  THEREFORE,

19  

20  Be It Enacted by the Legislature of the State of Florida:

21  

22         Section 1.  Section 945.355, Florida Statutes, is

23  created to read:

24         945.355  HIV testing of inmates prior to release.--

25         (1)  As used in this section, the term "HIV test" means

26  a test ordered to determine the presence of the antibody or

27  antigen to human immunodeficiency virus or the presence of

28  human immunodeficiency virus infection.

29         (2)  Pursuant to s. 381.004(3), the department shall

30  perform an HIV test on an inmate whose HIV status is unknown

31  to the department not less than 60 days prior to the inmate's


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                                           HB 301, First Engrossed



  1  presumptive release date from prison by reason of parole,

  2  accumulation of gain-time credits, or expiration of sentence.

  3  An inmate who is known to the department to be HIV positive or

  4  who has been tested within the previous year and does not

  5  request retesting need not be tested under this section, but

  6  is subject to subsections (4) and (5). However, an inmate who

  7  is released due to an emergency is exempt from the provisions

  8  of this section.

  9         (3)  The department shall record the results of the HIV

10  test in the inmate's medical record.

11         (4)  Pursuant to ss. 381.004(3) and 945.10, the

12  department shall notify the Department of Health and the

13  county health department where the inmate plans to reside

14  regarding an inmate who is known to be HIV positive or has

15  received an HIV positive test result under this section prior

16  to the release of that inmate.

17         (5)  Prior to the release of an inmate who is known to

18  be HIV positive or who has received a positive HIV test result

19  under this section, the department shall provide special

20  transitional assistance to the inmate, which must include:

21         (a)  Education on preventing the transmission of HIV to

22  others and on the importance of receiving followup care and

23  treatment.

24         (b)  A written, individualized discharge plan that

25  includes referrals and contacts to the county health

26  department and local HIV primary care services in the area

27  where the inmate plans to reside.

28         (c)  If appropriate, a 30-day supply of all medicines

29  the inmate is taking at the time of release.

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                                           HB 301, First Engrossed



  1         (6)  The department shall report to the Legislature by

  2  March 1, 2002, as to the implementation of this program and

  3  the participation by inmates and staff.

  4         Section 2.  Paragraph (a) of subsection (1) of section

  5  945.10, Florida Statutes, is reenacted, and subsection (2) of

  6  said section is amended, to read:

  7         945.10  Confidential information.--

  8         (1)  Except as otherwise provided by law or in this

  9  section, the following records and information of the

10  Department of Corrections are confidential and exempt from the

11  provisions of s. 119.07(1) and s. 24(a), Art. I of the State

12  Constitution:

13         (a)  Mental health, medical, or substance abuse records

14  of an inmate or an offender.

15         (2)  The records and information specified in

16  paragraphs (1)(a)-(h) (1)(b)-(h) may be released as follows

17  unless expressly prohibited by federal law:

18         (a)  Information specified in paragraphs (1)(b), (d),

19  and (f) to the Office of the Governor, the Legislature, the

20  Parole Commission, the Department of Children and Family

21  Services, a private correctional facility or program that

22  operates under a contract, the Department of Legal Affairs, a

23  state attorney, the court, or a law enforcement agency. A

24  request for records or information pursuant to this paragraph

25  need not be in writing.

26         (b)  Information specified in paragraphs (1)(c), (e),

27  and (h) to the Office of the Governor, the Legislature, the

28  Parole Commission, the Department of Children and Family

29  Services, a private correctional facility or program that

30  operates under contract, the Department of Legal Affairs, a

31  state attorney, the court, or a law enforcement agency. A


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                                           HB 301, First Engrossed



  1  request for records or information pursuant to this paragraph

  2  must be in writing and a statement provided demonstrating a

  3  need for the records or information.

  4         (c)  Information specified in paragraph (1)(b) to an

  5  attorney representing an inmate under sentence of death,

  6  except those portions of the records containing a victim's

  7  statement or address, or the statement or address of a

  8  relative of the victim. A request for records of information

  9  pursuant to this paragraph must be in writing and a statement

10  provided demonstrating a need for the records or information.

11         (d)  Information specified in paragraph (1)(b) to a

12  public defender representing a defendant, except those

13  portions of the records containing a victim's statement or

14  address, or the statement or address of a relative of the

15  victim. A request for records or information pursuant to this

16  paragraph need not be in writing.

17         (e)  Information specified in paragraph (1)(b) to state

18  or local governmental agencies. A request for records or

19  information pursuant to this paragraph must be in writing and

20  a statement provided demonstrating a need for the records or

21  information.

22         (f)  Information specified in paragraph (1)(b) to a

23  person conducting legitimate research. A request for records

24  and information pursuant to this paragraph must be in writing,

25  the person requesting the records or information must sign a

26  confidentiality agreement, and the department must approve the

27  request in writing.

28         (g)  Information specified in paragraph (1)(a) to the

29  Department of Health and the county health department where an

30  inmate plans to reside if he or she has tested positive for

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                                           HB 301, First Engrossed



  1  the presence of the antibody or antigen to human

  2  immunodeficiency virus infection pursuant to s. 945.355.

  3  

  4  Records and information released under this subsection remain

  5  confidential and exempt from the provisions of s. 119.07(1)

  6  and s. 24(a), Art. I of the State Constitution when held by

  7  the receiving person or entity.

  8         Section 3.  Paragraph (h) of subsection (3) of section

  9  381.004, Florida Statutes, is amended to read:

10         381.004  HIV testing.--

11         (3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED

12  CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--

13         (h)  Notwithstanding the provisions of paragraph (a),

14  informed consent is not required:

15         1.  When testing for sexually transmissible diseases is

16  required by state or federal law, or by rule including the

17  following situations:

18         a.  HIV testing pursuant to s. 796.08 of persons

19  convicted of prostitution or of procuring another to commit

20  prostitution.

21         b.  HIV testing of inmates pursuant to s. 945.355 prior

22  to their release from prison by reason of parole, accumulation

23  of gain-time credits, or expiration of sentence.

24         c.b.  Testing for HIV by a medical examiner in

25  accordance with s. 406.11.

26         2.  Those exceptions provided for blood, plasma,

27  organs, skin, semen, or other human tissue pursuant to s.

28  381.0041.

29         3.  For the performance of an HIV-related test by

30  licensed medical personnel in bona fide medical emergencies

31  when the test results are necessary for medical diagnostic


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                                           HB 301, First Engrossed



  1  purposes to provide appropriate emergency care or treatment to

  2  the person being tested and the patient is unable to consent,

  3  as supported by documentation in the medical record.

  4  Notification of test results in accordance with paragraph (c)

  5  is required.

  6         4.  For the performance of an HIV-related test by

  7  licensed medical personnel for medical diagnosis of acute

  8  illness where, in the opinion of the attending physician,

  9  obtaining informed consent would be detrimental to the

10  patient, as supported by documentation in the medical record,

11  and the test results are necessary for medical diagnostic

12  purposes to provide appropriate care or treatment to the

13  person being tested. Notification of test results in

14  accordance with paragraph (c) is required if it would not be

15  detrimental to the patient.  This subparagraph does not

16  authorize the routine testing of patients for HIV infection

17  without informed consent.

18         5.  When HIV testing is performed as part of an autopsy

19  for which consent was obtained pursuant to s. 872.04.

20         6.  For the performance of an HIV test upon a defendant

21  pursuant to the victim's request in a prosecution for any type

22  of sexual battery where a blood sample is taken from the

23  defendant voluntarily, pursuant to court order for any

24  purpose, or pursuant to the provisions of s. 775.0877, s.

25  951.27, or s. 960.003; however, the results of any HIV test

26  performed shall be disclosed solely to the victim and the

27  defendant, except as provided in ss. 775.0877, 951.27, and

28  960.003.

29         7.  When an HIV test is mandated by court order.

30         8.  For epidemiological research pursuant to s.

31  381.0032, for research consistent with institutional review


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                                           HB 301, First Engrossed



  1  boards created by 45 C.F.R. part 46, or for the performance of

  2  an HIV-related test for the purpose of research, if the

  3  testing is performed in a manner by which the identity of the

  4  test subject is not known and may not be retrieved by the

  5  researcher.

  6         9.  When human tissue is collected lawfully without the

  7  consent of the donor for corneal removal as authorized by s.

  8  732.9185 or enucleation of the eyes as authorized by s.

  9  732.919.

10         10.  For the performance of an HIV test upon an

11  individual who comes into contact with medical personnel in

12  such a way that a significant exposure has occurred during the

13  course of employment or within the scope of practice and where

14  a blood sample is available that was taken from that

15  individual voluntarily by medical personnel for other

16  purposes.  The term "medical personnel" includes a licensed or

17  certified health care professional; an employee of a health

18  care professional or health care facility; employees of a

19  laboratory licensed under chapter 483; personnel of a blood

20  bank or plasma center; a medical student or other student who

21  is receiving training as a health care professional at a

22  health care facility; and a paramedic or emergency medical

23  technician certified by the department to perform life-support

24  procedures under s. 401.23.

25         a.  Prior to performance of an HIV test on a

26  voluntarily obtained blood sample, the individual from whom

27  the blood was obtained shall be requested to consent to the

28  performance of the test and to the release of the results.

29  The individual's refusal to consent and all information

30  concerning the performance of an HIV test and any HIV test

31  result shall be documented only in the medical personnel's


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                                           HB 301, First Engrossed



  1  record unless the individual gives written consent to entering

  2  this information on the individual's medical record.

  3         b.  Reasonable attempts to locate the individual and to

  4  obtain consent shall be made and all attempts must be

  5  documented. If the individual cannot be found, an HIV test may

  6  be conducted on the available blood sample. If the individual

  7  does not voluntarily consent to the performance of an HIV

  8  test, the individual shall be informed that an HIV test will

  9  be performed, and counseling shall be furnished as provided in

10  this section.  However, HIV testing shall be conducted only

11  after a licensed physician documents, in the medical record of

12  the medical personnel, that there has been a significant

13  exposure and that, in the physician's medical judgment, the

14  information is medically necessary to determine the course of

15  treatment for the medical personnel.

16         c.  Costs of any HIV test of a blood sample performed

17  with or without the consent of the individual, as provided in

18  this subparagraph, shall be borne by the medical personnel or

19  the employer of the medical personnel. However, costs of

20  testing or treatment not directly related to the initial HIV

21  tests or costs of subsequent testing or treatment shall not be

22  borne by the medical personnel or the employer of the medical

23  personnel.

24         d.  In order to utilize the provisions of this

25  subparagraph, the medical personnel must either be tested for

26  HIV pursuant to this section or provide the results of an HIV

27  test taken within 6 months prior to the significant exposure

28  if such test results are negative.

29         e.  A person who receives the results of an HIV test

30  pursuant to this subparagraph shall maintain the

31  confidentiality of the information received and of the persons


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                                           HB 301, First Engrossed



  1  tested.  Such confidential information is exempt from s.

  2  119.07(1).

  3         f.  If the source of the exposure will not voluntarily

  4  submit to HIV testing and a blood sample is not available, the

  5  medical personnel or the employer of such person acting on

  6  behalf of the employee may seek a court order directing the

  7  source of the exposure to submit to HIV testing.  A sworn

  8  statement by a physician licensed under chapter 458 or chapter

  9  459 that a significant exposure has occurred and that, in the

10  physician's medical judgment, testing is medically necessary

11  to determine the course of treatment constitutes probable

12  cause for the issuance of an order by the court.  The results

13  of the test shall be released to the source of the exposure

14  and to the person who experienced the exposure.

15         11.  For the performance of an HIV test upon an

16  individual who comes into contact with medical personnel in

17  such a way that a significant exposure has occurred during the

18  course of employment or within the scope of practice of the

19  medical personnel while the medical personnel provides

20  emergency medical treatment to the individual; or who comes

21  into contact with nonmedical personnel in such a way that a

22  significant exposure has occurred while the nonmedical

23  personnel provides emergency medical assistance during a

24  medical emergency.  For the purposes of this subparagraph, a

25  medical emergency means an emergency medical condition outside

26  of a hospital or health care facility that provides physician

27  care. The test may be performed only during the course of

28  treatment for the medical emergency.

29         a.  An individual who is capable of providing consent

30  shall be requested to consent to an HIV test prior to the

31  testing. The individual's refusal to consent, and all


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                                           HB 301, First Engrossed



  1  information concerning the performance of an HIV test and its

  2  result, shall be documented only in the medical personnel's

  3  record unless the individual gives written consent to entering

  4  this information on the individual's medical record.

  5         b.  HIV testing shall be conducted only after a

  6  licensed physician documents, in the medical record of the

  7  medical personnel or nonmedical personnel, that there has been

  8  a significant exposure and that, in the physician's medical

  9  judgment, the information is medically necessary to determine

10  the course of treatment for the medical personnel or

11  nonmedical personnel.

12         c.  Costs of any HIV test performed with or without the

13  consent of the individual, as provided in this subparagraph,

14  shall be borne by the medical personnel or the employer of the

15  medical personnel or nonmedical personnel. However, costs of

16  testing or treatment not directly related to the initial HIV

17  tests or costs of subsequent testing or treatment shall not be

18  borne by the medical personnel or the employer of the medical

19  personnel or nonmedical personnel.

20         d.  In order to utilize the provisions of this

21  subparagraph, the medical personnel or nonmedical personnel

22  shall be tested for HIV pursuant to this section or shall

23  provide the results of an HIV test taken within 6 months prior

24  to the significant exposure if such test results are negative.

25         e.  A person who receives the results of an HIV test

26  pursuant to this subparagraph shall maintain the

27  confidentiality of the information received and of the persons

28  tested.  Such confidential information is exempt from s.

29  119.07(1).

30         f.  If the source of the exposure will not voluntarily

31  submit to HIV testing and a blood sample was not obtained


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                                           HB 301, First Engrossed



  1  during treatment for the medical emergency, the medical

  2  personnel, the employer of the medical personnel acting on

  3  behalf of the employee, or the nonmedical personnel may seek a

  4  court order directing the source of the exposure to submit to

  5  HIV testing.  A sworn statement by a physician licensed under

  6  chapter 458 or chapter 459 that a significant exposure has

  7  occurred and that, in the physician's medical judgment,

  8  testing is medically necessary to determine the course of

  9  treatment constitutes probable cause for the issuance of an

10  order by the court.  The results of the test shall be released

11  to the source of the exposure and to the person who

12  experienced the exposure.

13         12.  For the performance of an HIV test by the medical

14  examiner or attending physician upon an individual who expired

15  or could not be resuscitated while receiving emergency medical

16  assistance or care and who was the source of a significant

17  exposure to medical or nonmedical personnel providing such

18  assistance or care.

19         a.  HIV testing may be conducted only after a licensed

20  physician documents in the medical record of the medical

21  personnel or nonmedical personnel that there has been a

22  significant exposure and that, in the physician's medical

23  judgment, the information is medically necessary to determine

24  the course of treatment for the medical personnel or

25  nonmedical personnel.

26         b.  Costs of any HIV test performed under this

27  subparagraph may not be charged to the deceased or to the

28  family of the deceased person.

29         c.  For the provisions of this subparagraph to be

30  applicable, the medical personnel or nonmedical personnel must

31  be tested for HIV under this section or must provide the


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                                           HB 301, First Engrossed



  1  results of an HIV test taken within 6 months before the

  2  significant exposure if such test results are negative.

  3         d.  A person who receives the results of an HIV test

  4  pursuant to this subparagraph shall comply with paragraph (e).

  5         13.  For the performance of an HIV-related test

  6  medically indicated by licensed medical personnel for medical

  7  diagnosis of a hospitalized infant as necessary to provide

  8  appropriate care and treatment of the infant when, after a

  9  reasonable attempt, a parent cannot be contacted to provide

10  consent. The medical records of the infant shall reflect the

11  reason consent of the parent was not initially obtained.  Test

12  results shall be provided to the parent when the parent is

13  located.

14         14.  For the performance of HIV testing conducted to

15  monitor the clinical progress of a patient previously

16  diagnosed to be HIV positive.

17         15.  For the performance of repeated HIV testing

18  conducted to monitor possible conversion from a significant

19  exposure.

20         Section 4.  Section 944.704, Florida Statutes, is

21  amended to read:

22         944.704  Staff who provide transition assistance;

23  duties.--The department shall provide a transition assistance

24  officer at major institutions whose duties include, but are

25  not limited to:

26         (1)  Coordinating delivery of transition assistance

27  program services at the institution.

28         (2)  Assisting in the development of each inmate's

29  postrelease plan.

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                                           HB 301, First Engrossed



  1         (3)  Obtaining job placement information for

  2  transmittal to the Department of Labor and Employment

  3  Security.

  4         (4)  Providing a photo identification card to all

  5  inmates prior to their release.

  6         (5)  Providing a written medical discharge plan,

  7  referral to a county health department, and, if appropriate, a

  8  supply of prescribed medication for an inmate known to be HIV

  9  positive or who has received an HIV positive test result under

10  s. 945.355.

11         Section 5.  This act shall be contingent upon funding

12  being made available.

13         Section 6.  This act shall take effect October 1, 2001.

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