| 1 | Representative(s) Richardson offered the following: |
| 2 |
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| 3 | Amendment (with title amendment) |
| 4 | Between line(s) 363 and 364, insert: |
| 5 | Section 4. Section 951.27, Florida Statutes, is amended to |
| 6 | read: |
| 7 | 951.27 Blood tests of inmates.-- |
| 8 | (1) Each county and each municipal detention facility |
| 9 | shall have a written procedure developed, in consultation with |
| 10 | the facility medical provider, establishing conditions under |
| 11 | which an inmate will be tested for infectious disease, including |
| 12 | human immunodeficiency virus pursuant to s. 775.0877, which |
| 13 | procedure is consistent with guidelines of the Centers for |
| 14 | Disease Control and Prevention and recommendations of the |
| 15 | Correctional Medical Authority. It is not unlawful for the |
| 16 | person receiving the test results to divulge the test results to |
| 17 | the sheriff or chief correctional officer. |
| 18 | (2)(a) Each county or municipality has the local option, |
| 19 | if authorized by a majority of the county's or municipality's |
| 20 | governing body, to participate in the testing program provided |
| 21 | in this subsection. The county or municipal detention facility |
| 22 | that lies within the authority of any participating county or |
| 23 | municipality shall, consistent with s. 381.004(3), perform an |
| 24 | HIV test as defined in s. 381.004(2) on each inmate who is to be |
| 25 | released from the facility unless the facility knows that the |
| 26 | inmate is HIV positive or unless, within 120 days before the |
| 27 | release date, the inmate has been tested for HIV and does not |
| 28 | request retesting. The required test must be performed not less |
| 29 | than 30 days before the release date of the inmate. A test is |
| 30 | not required under this paragraph if an inmate is released due |
| 31 | to an emergency or a court order and the detention facility |
| 32 | receives less than 30 days' notice of the release date or if the |
| 33 | inmate is transferred to the custody of the Department of |
| 34 | Corrections for incarceration in the state correctional system. |
| 35 | (b) If the county or municipal detention facility knows |
| 36 | that an inmate who is to be released from the facility is HIV |
| 37 | positive or has received a positive HIV test result, that |
| 38 | facility shall, before the inmate is released: |
| 39 | 1. Notify, consistent with s. 381.004(3), the Department |
| 40 | of Health and the county health department where the inmate |
| 41 | being released plans to reside of the release date and HIV |
| 42 | status of the inmate. |
| 43 | 2. Provide special transitional assistance to the inmate, |
| 44 | which must include: |
| 45 | a. Education on preventing the transmission of HIV to |
| 46 | others and on the importance of receiving followup medical care |
| 47 | and treatment. |
| 48 | b. A written, individualized discharge plan that includes |
| 49 | records of all laboratory and diagnostic test results, |
| 50 | medication and treatment information, and referrals to and |
| 51 | contacts with the county health department and local primary |
| 52 | medical care services for the treatment of HIV infection that |
| 53 | are available where the inmate plans to reside. |
| 54 | (3)(2) Except as otherwise provided in this subsection, |
| 55 | serologic blood test results obtained pursuant to subsection (1) |
| 56 | or subsection (2) are confidential and exempt from the |
| 57 | provisions of s. 119.07(1) and s. 24(a), Art. I of the State |
| 58 | Constitution. However, such results may be provided to employees |
| 59 | or officers of the sheriff or chief correctional officer who are |
| 60 | responsible for the custody and care of the affected inmate and |
| 61 | have a need to know such information, and as provided in ss. |
| 62 | 381.004(3), 775.0877, and 960.003. In addition, upon request of |
| 63 | the victim or the victim's legal guardian, or the parent or |
| 64 | legal guardian of the victim if the victim is a minor, the |
| 65 | results of any HIV test performed on an inmate who has been |
| 66 | arrested for any sexual offense involving oral, anal, or vaginal |
| 67 | penetration by, or union with, the sexual organ of another, |
| 68 | shall be disclosed to the victim or the victim's legal guardian, |
| 69 | or to the parent or legal guardian of the victim if the victim |
| 70 | is a minor. In such cases, the county or municipal detention |
| 71 | facility shall furnish the test results to the Department of |
| 72 | Health, which is responsible for disclosing the results to |
| 73 | public health agencies as provided in s. 775.0877 and to the |
| 74 | victim or the victim's legal guardian, or the parent or legal |
| 75 | guardian of the victim if the victim is a minor, as provided in |
| 76 | s. 960.003(3). |
| 77 | (4)(3) The results of any serologic blood test on an |
| 78 | inmate are a part of that inmate's permanent medical file. Upon |
| 79 | transfer of the inmate to any other correctional facility, such |
| 80 | file is also transferred, and all relevant authorized persons |
| 81 | must be notified of positive HIV test results, as required in s. |
| 82 | 775.0877. |
| 83 | (5) Notwithstanding any statute providing for a waiver of |
| 84 | sovereign immunity, the state, its agencies, or subdivisions, |
| 85 | and employees of the state, its agencies, or subdivisions are |
| 86 | not liable to any person for negligently causing death or |
| 87 | personal injury arising out of complying with this section. |
| 88 | Section 5. Paragraph (h) of subsection (3) of section |
| 89 | 381.004, Florida Statutes, is amended to read: |
| 90 | 381.004 HIV testing.-- |
| 91 | (3) HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED |
| 92 | CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.-- |
| 93 | (h) Notwithstanding the provisions of paragraph (a), |
| 94 | informed consent is not required: |
| 95 | 1. When testing for sexually transmissible diseases is |
| 96 | required by state or federal law, or by rule including the |
| 97 | following situations: |
| 98 | a. HIV testing pursuant to s. 796.08 of persons convicted |
| 99 | of prostitution or of procuring another to commit prostitution. |
| 100 | b. HIV testing of inmates pursuant to s. 945.355 prior to |
| 101 | their release from prison by reason of parole, accumulation of |
| 102 | gain-time credits, or expiration of sentence. |
| 103 | c. Testing for HIV by a medical examiner in accordance |
| 104 | with s. 406.11. |
| 105 | d. HIV testing of inmates pursuant to s. 951.27 prior to |
| 106 | their release from a county or municipal detention facility. |
| 107 | 2. Those exceptions provided for blood, plasma, organs, |
| 108 | skin, semen, or other human tissue pursuant to s. 381.0041. |
| 109 | 3. For the performance of an HIV-related test by licensed |
| 110 | medical personnel in bona fide medical emergencies when the test |
| 111 | results are necessary for medical diagnostic purposes to provide |
| 112 | appropriate emergency care or treatment to the person being |
| 113 | tested and the patient is unable to consent, as supported by |
| 114 | documentation in the medical record. Notification of test |
| 115 | results in accordance with paragraph (c) is required. |
| 116 | 4. For the performance of an HIV-related test by licensed |
| 117 | medical personnel for medical diagnosis of acute illness where, |
| 118 | in the opinion of the attending physician, obtaining informed |
| 119 | consent would be detrimental to the patient, as supported by |
| 120 | documentation in the medical record, and the test results are |
| 121 | necessary for medical diagnostic purposes to provide appropriate |
| 122 | care or treatment to the person being tested. Notification of |
| 123 | test results in accordance with paragraph (c) is required if it |
| 124 | would not be detrimental to the patient. This subparagraph does |
| 125 | not authorize the routine testing of patients for HIV infection |
| 126 | without informed consent. |
| 127 | 5. When HIV testing is performed as part of an autopsy for |
| 128 | which consent was obtained pursuant to s. 872.04. |
| 129 | 6. For the performance of an HIV test upon a defendant |
| 130 | pursuant to the victim's request in a prosecution for any type |
| 131 | of sexual battery where a blood sample is taken from the |
| 132 | defendant voluntarily, pursuant to court order for any purpose, |
| 133 | or pursuant to the provisions of s. 775.0877, s. 951.27, or s. |
| 134 | 960.003; however, the results of any HIV test performed shall be |
| 135 | disclosed solely to the victim and the defendant, except as |
| 136 | provided in ss. 775.0877, 951.27, and 960.003. |
| 137 | 7. When an HIV test is mandated by court order. |
| 138 | 8. For epidemiological research pursuant to s. 381.0032, |
| 139 | for research consistent with institutional review boards created |
| 140 | by 45 C.F.R. part 46, or for the performance of an HIV-related |
| 141 | test for the purpose of research, if the testing is performed in |
| 142 | a manner by which the identity of the test subject is not known |
| 143 | and may not be retrieved by the researcher. |
| 144 | 9. When human tissue is collected lawfully without the |
| 145 | consent of the donor for corneal removal as authorized by s. |
| 146 | 765.5185 or enucleation of the eyes as authorized by s. 765.519. |
| 147 | 10. For the performance of an HIV test upon an individual |
| 148 | who comes into contact with medical personnel in such a way that |
| 149 | a significant exposure has occurred during the course of |
| 150 | employment or within the scope of practice and where a blood |
| 151 | sample is available that was taken from that individual |
| 152 | voluntarily by medical personnel for other purposes. The term |
| 153 | "medical personnel" includes a licensed or certified health care |
| 154 | professional; an employee of a health care professional or |
| 155 | health care facility; employees of a laboratory licensed under |
| 156 | chapter 483; personnel of a blood bank or plasma center; a |
| 157 | medical student or other student who is receiving training as a |
| 158 | health care professional at a health care facility; and a |
| 159 | paramedic or emergency medical technician certified by the |
| 160 | department to perform life-support procedures under s. 401.23. |
| 161 | a. Prior to performance of an HIV test on a voluntarily |
| 162 | obtained blood sample, the individual from whom the blood was |
| 163 | obtained shall be requested to consent to the performance of the |
| 164 | test and to the release of the results. The individual's |
| 165 | refusal to consent and all information concerning the |
| 166 | performance of an HIV test and any HIV test result shall be |
| 167 | documented only in the medical personnel's record unless the |
| 168 | individual gives written consent to entering this information on |
| 169 | the individual's medical record. |
| 170 | b. Reasonable attempts to locate the individual and to |
| 171 | obtain consent shall be made, and all attempts must be |
| 172 | documented. If the individual cannot be found, an HIV test may |
| 173 | be conducted on the available blood sample. If the individual |
| 174 | does not voluntarily consent to the performance of an HIV test, |
| 175 | the individual shall be informed that an HIV test will be |
| 176 | performed, and counseling shall be furnished as provided in this |
| 177 | section. However, HIV testing shall be conducted only after a |
| 178 | licensed physician documents, in the medical record of the |
| 179 | medical personnel, that there has been a significant exposure |
| 180 | and that, in the physician's medical judgment, the information |
| 181 | is medically necessary to determine the course of treatment for |
| 182 | the medical personnel. |
| 183 | c. Costs of any HIV test of a blood sample performed with |
| 184 | or without the consent of the individual, as provided in this |
| 185 | subparagraph, shall be borne by the medical personnel or the |
| 186 | employer of the medical personnel. However, costs of testing or |
| 187 | treatment not directly related to the initial HIV tests or costs |
| 188 | of subsequent testing or treatment shall not be borne by the |
| 189 | medical personnel or the employer of the medical personnel. |
| 190 | d. In order to utilize the provisions of this |
| 191 | subparagraph, the medical personnel must either be tested for |
| 192 | HIV pursuant to this section or provide the results of an HIV |
| 193 | test taken within 6 months prior to the significant exposure if |
| 194 | such test results are negative. |
| 195 | e. A person who receives the results of an HIV test |
| 196 | pursuant to this subparagraph shall maintain the confidentiality |
| 197 | of the information received and of the persons tested. Such |
| 198 | confidential information is exempt from s. 119.07(1). |
| 199 | f. If the source of the exposure will not voluntarily |
| 200 | submit to HIV testing and a blood sample is not available, the |
| 201 | medical personnel or the employer of such person acting on |
| 202 | behalf of the employee may seek a court order directing the |
| 203 | source of the exposure to submit to HIV testing. A sworn |
| 204 | statement by a physician licensed under chapter 458 or chapter |
| 205 | 459 that a significant exposure has occurred and that, in the |
| 206 | physician's medical judgment, testing is medically necessary to |
| 207 | determine the course of treatment constitutes probable cause for |
| 208 | the issuance of an order by the court. The results of the test |
| 209 | shall be released to the source of the exposure and to the |
| 210 | person who experienced the exposure. |
| 211 | 11. For the performance of an HIV test upon an individual |
| 212 | who comes into contact with medical personnel in such a way that |
| 213 | a significant exposure has occurred during the course of |
| 214 | employment or within the scope of practice of the medical |
| 215 | personnel while the medical personnel provides emergency medical |
| 216 | treatment to the individual; or who comes into contact with |
| 217 | nonmedical personnel in such a way that a significant exposure |
| 218 | has occurred while the nonmedical personnel provides emergency |
| 219 | medical assistance during a medical emergency. For the purposes |
| 220 | of this subparagraph, a medical emergency means an emergency |
| 221 | medical condition outside of a hospital or health care facility |
| 222 | that provides physician care. The test may be performed only |
| 223 | during the course of treatment for the medical emergency. |
| 224 | a. An individual who is capable of providing consent shall |
| 225 | be requested to consent to an HIV test prior to the testing. The |
| 226 | individual's refusal to consent, and all information concerning |
| 227 | the performance of an HIV test and its result, shall be |
| 228 | documented only in the medical personnel's record unless the |
| 229 | individual gives written consent to entering this information on |
| 230 | the individual's medical record. |
| 231 | b. HIV testing shall be conducted only after a licensed |
| 232 | physician documents, in the medical record of the medical |
| 233 | personnel or nonmedical personnel, that there has been a |
| 234 | significant exposure and that, in the physician's medical |
| 235 | judgment, the information is medically necessary to determine |
| 236 | the course of treatment for the medical personnel or nonmedical |
| 237 | personnel. |
| 238 | c. Costs of any HIV test performed with or without the |
| 239 | consent of the individual, as provided in this subparagraph, |
| 240 | shall be borne by the medical personnel or the employer of the |
| 241 | medical personnel or nonmedical personnel. However, costs of |
| 242 | testing or treatment not directly related to the initial HIV |
| 243 | tests or costs of subsequent testing or treatment shall not be |
| 244 | borne by the medical personnel or the employer of the medical |
| 245 | personnel or nonmedical personnel. |
| 246 | d. In order to utilize the provisions of this |
| 247 | subparagraph, the medical personnel or nonmedical personnel |
| 248 | shall be tested for HIV pursuant to this section or shall |
| 249 | provide the results of an HIV test taken within 6 months prior |
| 250 | to the significant exposure if such test results are negative. |
| 251 | e. A person who receives the results of an HIV test |
| 252 | pursuant to this subparagraph shall maintain the confidentiality |
| 253 | of the information received and of the persons tested. Such |
| 254 | confidential information is exempt from s. 119.07(1). |
| 255 | f. If the source of the exposure will not voluntarily |
| 256 | submit to HIV testing and a blood sample was not obtained during |
| 257 | treatment for the medical emergency, the medical personnel, the |
| 258 | employer of the medical personnel acting on behalf of the |
| 259 | employee, or the nonmedical personnel may seek a court order |
| 260 | directing the source of the exposure to submit to HIV testing. |
| 261 | A sworn statement by a physician licensed under chapter 458 or |
| 262 | chapter 459 that a significant exposure has occurred and that, |
| 263 | in the physician's medical judgment, testing is medically |
| 264 | necessary to determine the course of treatment constitutes |
| 265 | probable cause for the issuance of an order by the court. The |
| 266 | results of the test shall be released to the source of the |
| 267 | exposure and to the person who experienced the exposure. |
| 268 | 12. For the performance of an HIV test by the medical |
| 269 | examiner or attending physician upon an individual who expired |
| 270 | or could not be resuscitated while receiving emergency medical |
| 271 | assistance or care and who was the source of a significant |
| 272 | exposure to medical or nonmedical personnel providing such |
| 273 | assistance or care. |
| 274 | a. HIV testing may be conducted only after a licensed |
| 275 | physician documents in the medical record of the medical |
| 276 | personnel or nonmedical personnel that there has been a |
| 277 | significant exposure and that, in the physician's medical |
| 278 | judgment, the information is medically necessary to determine |
| 279 | the course of treatment for the medical personnel or nonmedical |
| 280 | personnel. |
| 281 | b. Costs of any HIV test performed under this subparagraph |
| 282 | may not be charged to the deceased or to the family of the |
| 283 | deceased person. |
| 284 | c. For the provisions of this subparagraph to be |
| 285 | applicable, the medical personnel or nonmedical personnel must |
| 286 | be tested for HIV under this section or must provide the results |
| 287 | of an HIV test taken within 6 months before the significant |
| 288 | exposure if such test results are negative. |
| 289 | d. A person who receives the results of an HIV test |
| 290 | pursuant to this subparagraph shall comply with paragraph (e). |
| 291 | 13. For the performance of an HIV-related test medically |
| 292 | indicated by licensed medical personnel for medical diagnosis of |
| 293 | a hospitalized infant as necessary to provide appropriate care |
| 294 | and treatment of the infant when, after a reasonable attempt, a |
| 295 | parent cannot be contacted to provide consent. The medical |
| 296 | records of the infant shall reflect the reason consent of the |
| 297 | parent was not initially obtained. Test results shall be |
| 298 | provided to the parent when the parent is located. |
| 299 | 14. For the performance of HIV testing conducted to |
| 300 | monitor the clinical progress of a patient previously diagnosed |
| 301 | to be HIV positive. |
| 302 | 15. For the performance of repeated HIV testing conducted |
| 303 | to monitor possible conversion from a significant exposure. |
| 304 |
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| 305 | ================ T I T L E A M E N D M E N T ============= |
| 306 | Remove line(s) 20 and insert: |
| 307 | tested; amending s. 951.27, F.S.; allowing counties and |
| 308 | municipalities the option to participate in a program to |
| 309 | test each inmate for HIV prior to the inmate's release if |
| 310 | the inmate's HIV status is unknown; providing certain |
| 311 | exceptions; requiring county and municipal detention |
| 312 | facilities to notify the Department of Health and the |
| 313 | county health department where the inmate plans to reside |
| 314 | following release if the inmate is HIV positive; requiring |
| 315 | the detention facilities to provide special transitional |
| 316 | assistance to an inmate who is HIV positive; providing for |
| 317 | immunity for complying entities; amending s. 381.004, |
| 318 | F.S.; providing that informed consent is not required for |
| 319 | an HIV test of an inmate prior to the inmate's release |
| 320 | from a municipal or county detention facility; providing |
| 321 | an effective date. |