HB 1193

1
A bill to be entitled
2An act relating to the testing of inmates for HIV
3infection in county and municipal detention facilities;
4amending s. 951.27, F.S.; requiring county and municipal
5detention facilities to perform an HIV test before an
6inmate is released if the inmate's HIV status is unknown;
7providing certain exceptions; requiring county and
8municipal detention facilities to notify the Department of
9Health and the county health department where the inmate
10plans to reside following release if the inmate is HIV
11positive; requiring the detention facilities to provide
12special transitional assistance to an inmate who is HIV
13positive; providing for immunity for complying entities;
14amending s. 381.004, F.S.; providing that informed consent
15is not required for an HIV test of an inmate prior to the
16inmate's release from a municipal or county detention
17facility; providing an effective date.
18
19Be It Enacted by the Legislature of the State of Florida:
20
21     Section 1.  Section 951.27, Florida Statutes, is amended to
22read:
23     951.27  Blood tests of inmates.--
24     (1)  Each county and each municipal detention facility
25shall have a written procedure developed, in consultation with
26the facility medical provider, establishing conditions under
27which an inmate will be tested for infectious disease, including
28human immunodeficiency virus pursuant to s. 775.0877, which
29procedure is consistent with guidelines of the Centers for
30Disease Control and Prevention and recommendations of the
31Correctional Medical Authority. It is not unlawful for the
32person receiving the test results to divulge the test results to
33the sheriff or chief correctional officer.
34     (2)(a)  The county or municipal detention facility shall,
35consistent with s. 381.004(3), perform an HIV test as defined in
36s. 381.004(2) on each inmate who is to be released from the
37facility unless the facility knows that the inmate is HIV
38positive or unless, within 120 days before the release date, the
39inmate has been tested for HIV and does not request retesting.
40The required test must be performed not less than 30 days before
41the release date of the inmate. A test is not required under
42this paragraph if an inmate is released due to an emergency or a
43court order and the detention facility receives less than 30
44days' notice of the release date or if the inmate is transferred
45to the custody of the Department of Corrections for
46incarceration in the state correctional system.
47     (b)  If the county or municipal detention facility knows
48that an inmate who is to be released from the facility is HIV
49positive or has received a positive HIV test result, that
50facility shall, before the inmate is released:
51     1.  Notify, consistent with s. 381.004(3), the Department
52of Health and the county health department where the inmate
53being released plans to reside of the release date and HIV
54status of the inmate.
55     2.  Provide special transitional assistance to the inmate,
56which must include:
57     a.  Education on preventing the transmission of HIV to
58others and on the importance of receiving followup medical care
59and treatment.
60     b.  A written, individualized discharge plan that includes
61referrals to and contacts with the county health department and
62local primary medical care services for the treatment of HIV
63infection that are available where the inmate plans to reside.
64     (3)(2)  Except as otherwise provided in this subsection,
65serologic blood test results obtained pursuant to subsection (1)
66or subsection (2) are confidential and exempt from the
67provisions of s. 119.07(1) and s. 24(a), Art. I of the State
68Constitution. However, such results may be provided to employees
69or officers of the sheriff or chief correctional officer who are
70responsible for the custody and care of the affected inmate and
71have a need to know such information, and as provided in ss.
72381.004(3), 775.0877, and 960.003. In addition, upon request of
73the victim or the victim's legal guardian, or the parent or
74legal guardian of the victim if the victim is a minor, the
75results of any HIV test performed on an inmate who has been
76arrested for any sexual offense involving oral, anal, or vaginal
77penetration by, or union with, the sexual organ of another,
78shall be disclosed to the victim or the victim's legal guardian,
79or to the parent or legal guardian of the victim if the victim
80is a minor. In such cases, the county or municipal detention
81facility shall furnish the test results to the Department of
82Health, which is responsible for disclosing the results to
83public health agencies as provided in s. 775.0877 and to the
84victim or the victim's legal guardian, or the parent or legal
85guardian of the victim if the victim is a minor, as provided in
86s. 960.003(3).
87     (4)(3)  The results of any serologic blood test on an
88inmate are a part of that inmate's permanent medical file. Upon
89transfer of the inmate to any other correctional facility, such
90file is also transferred, and all relevant authorized persons
91must be notified of positive HIV test results, as required in s.
92775.0877.
93     (5)  Notwithstanding any statute providing for a waiver of
94sovereign immunity, the state, its agencies, or subdivisions,
95and employees of the state, its agencies, or subdivisions are
96not liable to any person for negligently causing death or
97personal injury arising out of complying with this section.
98     Section 2.  Paragraph (h) of subsection (3) of section
99381.004, Florida Statutes, is amended to read:
100     381.004  HIV testing.--
101     (3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED
102CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--
103     (h)  Notwithstanding the provisions of paragraph (a),
104informed consent is not required:
105     1.  When testing for sexually transmissible diseases is
106required by state or federal law, or by rule including the
107following situations:
108     a.  HIV testing pursuant to s. 796.08 of persons convicted
109of prostitution or of procuring another to commit prostitution.
110     b.  HIV testing of inmates pursuant to s. 945.355 prior to
111their release from prison by reason of parole, accumulation of
112gain-time credits, or expiration of sentence.
113     c.  Testing for HIV by a medical examiner in accordance
114with s. 406.11.
115     d.  HIV testing of inmates pursuant to s. 951.27 prior to
116their release from a county or municipal detention facility.
117     2.  Those exceptions provided for blood, plasma, organs,
118skin, semen, or other human tissue pursuant to s. 381.0041.
119     3.  For the performance of an HIV-related test by licensed
120medical personnel in bona fide medical emergencies when the test
121results are necessary for medical diagnostic purposes to provide
122appropriate emergency care or treatment to the person being
123tested and the patient is unable to consent, as supported by
124documentation in the medical record. Notification of test
125results in accordance with paragraph (c) is required.
126     4.  For the performance of an HIV-related test by licensed
127medical personnel for medical diagnosis of acute illness where,
128in the opinion of the attending physician, obtaining informed
129consent would be detrimental to the patient, as supported by
130documentation in the medical record, and the test results are
131necessary for medical diagnostic purposes to provide appropriate
132care or treatment to the person being tested. Notification of
133test results in accordance with paragraph (c) is required if it
134would not be detrimental to the patient.  This subparagraph does
135not authorize the routine testing of patients for HIV infection
136without informed consent.
137     5.  When HIV testing is performed as part of an autopsy for
138which consent was obtained pursuant to s. 872.04.
139     6.  For the performance of an HIV test upon a defendant
140pursuant to the victim's request in a prosecution for any type
141of sexual battery where a blood sample is taken from the
142defendant voluntarily, pursuant to court order for any purpose,
143or pursuant to the provisions of s. 775.0877, s. 951.27, or s.
144960.003; however, the results of any HIV test performed shall be
145disclosed solely to the victim and the defendant, except as
146provided in ss. 775.0877, 951.27, and 960.003.
147     7.  When an HIV test is mandated by court order.
148     8.  For epidemiological research pursuant to s. 381.0032,
149for research consistent with institutional review boards created
150by 45 C.F.R. part 46, or for the performance of an HIV-related
151test for the purpose of research, if the testing is performed in
152a manner by which the identity of the test subject is not known
153and may not be retrieved by the researcher.
154     9.  When human tissue is collected lawfully without the
155consent of the donor for corneal removal as authorized by s.
156765.5185 or enucleation of the eyes as authorized by s. 765.519.
157     10.  For the performance of an HIV test upon an individual
158who comes into contact with medical personnel in such a way that
159a significant exposure has occurred during the course of
160employment or within the scope of practice and where a blood
161sample is available that was taken from that individual
162voluntarily by medical personnel for other purposes.  The term
163"medical personnel" includes a licensed or certified health care
164professional; an employee of a health care professional or
165health care facility; employees of a laboratory licensed under
166chapter 483; personnel of a blood bank or plasma center; a
167medical student or other student who is receiving training as a
168health care professional at a health care facility; and a
169paramedic or emergency medical technician certified by the
170department to perform life-support procedures under s. 401.23.
171     a.  Prior to performance of an HIV test on a voluntarily
172obtained blood sample, the individual from whom the blood was
173obtained shall be requested to consent to the performance of the
174test and to the release of the results.  The individual's
175refusal to consent and all information concerning the
176performance of an HIV test and any HIV test result shall be
177documented only in the medical personnel's record unless the
178individual gives written consent to entering this information on
179the individual's medical record.
180     b.  Reasonable attempts to locate the individual and to
181obtain consent shall be made, and all attempts must be
182documented. If the individual cannot be found, an HIV test may
183be conducted on the available blood sample. If the individual
184does not voluntarily consent to the performance of an HIV test,
185the individual shall be informed that an HIV test will be
186performed, and counseling shall be furnished as provided in this
187section.  However, HIV testing shall be conducted only after a
188licensed physician documents, in the medical record of the
189medical personnel, that there has been a significant exposure
190and that, in the physician's medical judgment, the information
191is medically necessary to determine the course of treatment for
192the medical personnel.
193     c.  Costs of any HIV test of a blood sample performed with
194or without the consent of the individual, as provided in this
195subparagraph, shall be borne by the medical personnel or the
196employer of the medical personnel. However, costs of testing or
197treatment not directly related to the initial HIV tests or costs
198of subsequent testing or treatment shall not be borne by the
199medical personnel or the employer of the medical personnel.
200     d.  In order to utilize the provisions of this
201subparagraph, the medical personnel must either be tested for
202HIV pursuant to this section or provide the results of an HIV
203test taken within 6 months prior to the significant exposure if
204such test results are negative.
205     e.  A person who receives the results of an HIV test
206pursuant to this subparagraph shall maintain the confidentiality
207of the information received and of the persons tested.  Such
208confidential information is exempt from s. 119.07(1).
209     f.  If the source of the exposure will not voluntarily
210submit to HIV testing and a blood sample is not available, the
211medical personnel or the employer of such person acting on
212behalf of the employee may seek a court order directing the
213source of the exposure to submit to HIV testing.  A sworn
214statement by a physician licensed under chapter 458 or chapter
215459 that a significant exposure has occurred and that, in the
216physician's medical judgment, testing is medically necessary to
217determine the course of treatment constitutes probable cause for
218the issuance of an order by the court.  The results of the test
219shall be released to the source of the exposure and to the
220person who experienced the exposure.
221     11.  For the performance of an HIV test upon an individual
222who comes into contact with medical personnel in such a way that
223a significant exposure has occurred during the course of
224employment or within the scope of practice of the medical
225personnel while the medical personnel provides emergency medical
226treatment to the individual; or who comes into contact with
227nonmedical personnel in such a way that a significant exposure
228has occurred while the nonmedical personnel provides emergency
229medical assistance during a medical emergency.  For the purposes
230of this subparagraph, a medical emergency means an emergency
231medical condition outside of a hospital or health care facility
232that provides physician care. The test may be performed only
233during the course of treatment for the medical emergency.
234     a.  An individual who is capable of providing consent shall
235be requested to consent to an HIV test prior to the testing. The
236individual's refusal to consent, and all information concerning
237the performance of an HIV test and its result, shall be
238documented only in the medical personnel's record unless the
239individual gives written consent to entering this information on
240the individual's medical record.
241     b.  HIV testing shall be conducted only after a licensed
242physician documents, in the medical record of the medical
243personnel or nonmedical personnel, that there has been a
244significant exposure and that, in the physician's medical
245judgment, the information is medically necessary to determine
246the course of treatment for the medical personnel or nonmedical
247personnel.
248     c.  Costs of any HIV test performed with or without the
249consent of the individual, as provided in this subparagraph,
250shall be borne by the medical personnel or the employer of the
251medical personnel or nonmedical personnel. However, costs of
252testing or treatment not directly related to the initial HIV
253tests or costs of subsequent testing or treatment shall not be
254borne by the medical personnel or the employer of the medical
255personnel or nonmedical personnel.
256     d.  In order to utilize the provisions of this
257subparagraph, the medical personnel or nonmedical personnel
258shall be tested for HIV pursuant to this section or shall
259provide the results of an HIV test taken within 6 months prior
260to the significant exposure if such test results are negative.
261     e.  A person who receives the results of an HIV test
262pursuant to this subparagraph shall maintain the confidentiality
263of the information received and of the persons tested.  Such
264confidential information is exempt from s. 119.07(1).
265     f.  If the source of the exposure will not voluntarily
266submit to HIV testing and a blood sample was not obtained during
267treatment for the medical emergency, the medical personnel, the
268employer of the medical personnel acting on behalf of the
269employee, or the nonmedical personnel may seek a court order
270directing the source of the exposure to submit to HIV testing.  
271A sworn statement by a physician licensed under chapter 458 or
272chapter 459 that a significant exposure has occurred and that,
273in the physician's medical judgment, testing is medically
274necessary to determine the course of treatment constitutes
275probable cause for the issuance of an order by the court.  The
276results of the test shall be released to the source of the
277exposure and to the person who experienced the exposure.
278     12.  For the performance of an HIV test by the medical
279examiner or attending physician upon an individual who expired
280or could not be resuscitated while receiving emergency medical
281assistance or care and who was the source of a significant
282exposure to medical or nonmedical personnel providing such
283assistance or care.
284     a.  HIV testing may be conducted only after a licensed
285physician documents in the medical record of the medical
286personnel or nonmedical personnel that there has been a
287significant exposure and that, in the physician's medical
288judgment, the information is medically necessary to determine
289the course of treatment for the medical personnel or nonmedical
290personnel.
291     b.  Costs of any HIV test performed under this subparagraph
292may not be charged to the deceased or to the family of the
293deceased person.
294     c.  For the provisions of this subparagraph to be
295applicable, the medical personnel or nonmedical personnel must
296be tested for HIV under this section or must provide the results
297of an HIV test taken within 6 months before the significant
298exposure if such test results are negative.
299     d.  A person who receives the results of an HIV test
300pursuant to this subparagraph shall comply with paragraph (e).
301     13.  For the performance of an HIV-related test medically
302indicated by licensed medical personnel for medical diagnosis of
303a hospitalized infant as necessary to provide appropriate care
304and treatment of the infant when, after a reasonable attempt, a
305parent cannot be contacted to provide consent. The medical
306records of the infant shall reflect the reason consent of the
307parent was not initially obtained.  Test results shall be
308provided to the parent when the parent is located.
309     14.  For the performance of HIV testing conducted to
310monitor the clinical progress of a patient previously diagnosed
311to be HIV positive.
312     15.  For the performance of repeated HIV testing conducted
313to monitor possible conversion from a significant exposure.
314     Section 3.  This act shall take effect July 1, 2005.


CODING: Words stricken are deletions; words underlined are additions.