| 1 | Representative(s) Gannon offered the following: |
| 2 |
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| 3 | Amendment (with title amendment) |
| 4 | Remove line(s) 72-363 and insert: |
| 5 | 2. Those exceptions provided for blood, plasma, organs, |
| 6 | skin, semen, or other human tissue pursuant to s. 381.0041. |
| 7 | 3. For the performance of an HIV-related test by licensed |
| 8 | medical personnel in bona fide medical emergencies when the test |
| 9 | results are necessary for medical diagnostic purposes to provide |
| 10 | appropriate emergency care or treatment to the person being |
| 11 | tested and the patient is unable to consent, as supported by |
| 12 | documentation in the medical record. Notification of test |
| 13 | results in accordance with paragraph (c) is required. |
| 14 | 4. For the performance of an HIV-related test by licensed |
| 15 | medical personnel for medical diagnosis of acute illness where, |
| 16 | in the opinion of the attending physician, obtaining informed |
| 17 | consent would be detrimental to the patient, as supported by |
| 18 | documentation in the medical record, and the test results are |
| 19 | necessary for medical diagnostic purposes to provide appropriate |
| 20 | care or treatment to the person being tested. Notification of |
| 21 | test results in accordance with paragraph (c) is required if it |
| 22 | would not be detrimental to the patient. This subparagraph does |
| 23 | not authorize the routine testing of patients for HIV infection |
| 24 | without informed consent. |
| 25 | 5. When HIV testing is performed as part of an autopsy for |
| 26 | which consent was obtained pursuant to s. 872.04. |
| 27 | 6. For the performance of an HIV test upon a defendant |
| 28 | pursuant to the victim's request in a prosecution for any type |
| 29 | of sexual battery where a blood sample is taken from the |
| 30 | defendant voluntarily, pursuant to court order for any purpose, |
| 31 | or pursuant to the provisions of s. 775.0877, s. 951.27, or s. |
| 32 | 960.003; however, the results of any HIV test performed shall be |
| 33 | disclosed solely to the victim and the defendant, except as |
| 34 | provided in ss. 775.0877, 951.27, and 960.003. |
| 35 | 7. When an HIV test is mandated by court order. |
| 36 | 8. For epidemiological research pursuant to s. 381.0032, |
| 37 | for research consistent with institutional review boards created |
| 38 | by 45 C.F.R. part 46, or for the performance of an HIV-related |
| 39 | test for the purpose of research, if the testing is performed in |
| 40 | a manner by which the identity of the test subject is not known |
| 41 | and may not be retrieved by the researcher. |
| 42 | 9. When human tissue is collected lawfully without the |
| 43 | consent of the donor for corneal removal as authorized by s. |
| 44 | 765.5185 or enucleation of the eyes as authorized by s. 765.519. |
| 45 | 10. For the performance of an HIV test upon an individual |
| 46 | who comes into contact with medical personnel in such a way that |
| 47 | a significant exposure has occurred during the course of |
| 48 | employment or within the scope of practice and where a blood |
| 49 | sample is available that was taken from that individual |
| 50 | voluntarily by medical personnel for other purposes. The term |
| 51 | "medical personnel" includes a licensed or certified health care |
| 52 | professional; an employee of a health care professional or |
| 53 | health care facility; employees of a laboratory licensed under |
| 54 | chapter 483; personnel of a blood bank or plasma center; a |
| 55 | medical student or other student who is receiving training as a |
| 56 | health care professional at a health care facility; and a |
| 57 | paramedic or emergency medical technician certified by the |
| 58 | department to perform life-support procedures under s. 401.23. |
| 59 | a. Prior to performance of an HIV test on a voluntarily |
| 60 | obtained blood sample, the individual from whom the blood was |
| 61 | obtained shall be requested to consent to the performance of the |
| 62 | test and to the release of the results. The individual's refusal |
| 63 | to consent and all information concerning the performance of an |
| 64 | HIV test and any HIV test result shall be documented only in the |
| 65 | medical personnel's record unless the individual gives written |
| 66 | consent to entering this information on the individual's medical |
| 67 | record. |
| 68 | b. Reasonable attempts to locate the individual and to |
| 69 | obtain consent shall be made, and all attempts must be |
| 70 | documented. If the individual cannot be found, an HIV test may |
| 71 | be conducted on the available blood sample. If the individual |
| 72 | does not voluntarily consent to the performance of an HIV test, |
| 73 | the individual shall be informed that an HIV test will be |
| 74 | performed, and counseling shall be furnished as provided in this |
| 75 | section. However, HIV testing shall be conducted only after a |
| 76 | licensed physician documents, in the medical record of the |
| 77 | medical personnel, that there has been a significant exposure |
| 78 | and that, in the physician's medical judgment, the information |
| 79 | is medically necessary to determine the course of treatment for |
| 80 | the medical personnel. |
| 81 | c. Costs of any HIV test of a blood sample performed with |
| 82 | or without the consent of the individual, as provided in this |
| 83 | subparagraph, shall be borne by the medical personnel or the |
| 84 | employer of the medical personnel. However, costs of testing or |
| 85 | treatment not directly related to the initial HIV tests or costs |
| 86 | of subsequent testing or treatment shall not be borne by the |
| 87 | medical personnel or the employer of the medical personnel. |
| 88 | d. In order to utilize the provisions of this |
| 89 | subparagraph, the medical personnel must either be tested for |
| 90 | HIV pursuant to this section or provide the results of an HIV |
| 91 | test taken within 6 months prior to the significant exposure if |
| 92 | such test results are negative. |
| 93 | e. A person who receives the results of an HIV test |
| 94 | pursuant to this subparagraph shall maintain the confidentiality |
| 95 | of the information received and of the persons tested. Such |
| 96 | confidential information is exempt from s. 119.07(1). |
| 97 | f. If the source of the exposure will not voluntarily |
| 98 | submit to HIV testing and a blood sample is not available, the |
| 99 | medical personnel or the employer of such person acting on |
| 100 | behalf of the employee may seek a court order directing the |
| 101 | source of the exposure to submit to HIV testing. A sworn |
| 102 | statement by a physician licensed under chapter 458 or chapter |
| 103 | 459 that a significant exposure has occurred and that, in the |
| 104 | physician's medical judgment, testing is medically necessary to |
| 105 | determine the course of treatment constitutes probable cause for |
| 106 | the issuance of an order by the court. The results of the test |
| 107 | shall be released to the source of the exposure and to the |
| 108 | person who experienced the exposure. |
| 109 | 11. For the performance of an HIV test upon an individual |
| 110 | who comes into contact with medical personnel in such a way that |
| 111 | a significant exposure has occurred during the course of |
| 112 | employment or within the scope of practice of the medical |
| 113 | personnel while the medical personnel provides emergency medical |
| 114 | treatment to the individual; or who comes into contact with |
| 115 | nonmedical personnel in such a way that a significant exposure |
| 116 | has occurred while the nonmedical personnel provides emergency |
| 117 | medical assistance during a medical emergency. For the purposes |
| 118 | of this subparagraph, a medical emergency means an emergency |
| 119 | medical condition outside of a hospital or health care facility |
| 120 | that provides physician care. The test may be performed only |
| 121 | during the course of treatment for the medical emergency. |
| 122 | a. An individual who is capable of providing consent shall |
| 123 | be requested to consent to an HIV test prior to the testing. The |
| 124 | individual's refusal to consent, and all information concerning |
| 125 | the performance of an HIV test and its result, shall be |
| 126 | documented only in the medical personnel's record unless the |
| 127 | individual gives written consent to entering this information on |
| 128 | the individual's medical record. |
| 129 | b. HIV testing shall be conducted only after a licensed |
| 130 | physician documents, in the medical record of the medical |
| 131 | personnel or nonmedical personnel, that there has been a |
| 132 | significant exposure and that, in the physician's medical |
| 133 | judgment, the information is medically necessary to determine |
| 134 | the course of treatment for the medical personnel or nonmedical |
| 135 | personnel. |
| 136 | c. Costs of any HIV test performed with or without the |
| 137 | consent of the individual, as provided in this subparagraph, |
| 138 | shall be borne by the medical personnel or the employer of the |
| 139 | medical personnel or nonmedical personnel. However, costs of |
| 140 | testing or treatment not directly related to the initial HIV |
| 141 | tests or costs of subsequent testing or treatment shall not be |
| 142 | borne by the medical personnel or the employer of the medical |
| 143 | personnel or nonmedical personnel. |
| 144 | d. In order to utilize the provisions of this |
| 145 | subparagraph, the medical personnel or nonmedical personnel |
| 146 | shall be tested for HIV pursuant to this section or shall |
| 147 | provide the results of an HIV test taken within 6 months prior |
| 148 | to the significant exposure if such test results are negative. |
| 149 | e. A person who receives the results of an HIV test |
| 150 | pursuant to this subparagraph shall maintain the confidentiality |
| 151 | of the information received and of the persons tested. Such |
| 152 | confidential information is exempt from s. 119.07(1). |
| 153 | f. If the source of the exposure will not voluntarily |
| 154 | submit to HIV testing and a blood sample was not obtained during |
| 155 | treatment for the medical emergency, the medical personnel, the |
| 156 | employer of the medical personnel acting on behalf of the |
| 157 | employee, or the nonmedical personnel may seek a court order |
| 158 | directing the source of the exposure to submit to HIV testing. A |
| 159 | sworn statement by a physician licensed under chapter 458 or |
| 160 | chapter 459 that a significant exposure has occurred and that, |
| 161 | in the physician's medical judgment, testing is medically |
| 162 | necessary to determine the course of treatment constitutes |
| 163 | probable cause for the issuance of an order by the court. The |
| 164 | results of the test shall be released to the source of the |
| 165 | exposure and to the person who experienced the exposure. |
| 166 | 12. For the performance of an HIV test by the medical |
| 167 | examiner or attending physician upon an individual who expired |
| 168 | or could not be resuscitated while receiving emergency medical |
| 169 | assistance or care and who was the source of a significant |
| 170 | exposure to medical or nonmedical personnel providing such |
| 171 | assistance or care. |
| 172 | a. HIV testing may be conducted only after a licensed |
| 173 | physician documents in the medical record of the medical |
| 174 | personnel or nonmedical personnel that there has been a |
| 175 | significant exposure and that, in the physician's medical |
| 176 | judgment, the information is medically necessary to determine |
| 177 | the course of treatment for the medical personnel or nonmedical |
| 178 | personnel. |
| 179 | b. Costs of any HIV test performed under this subparagraph |
| 180 | may not be charged to the deceased or to the family of the |
| 181 | deceased person. |
| 182 | c. For the provisions of this subparagraph to be |
| 183 | applicable, the medical personnel or nonmedical personnel must |
| 184 | be tested for HIV under this section or must provide the results |
| 185 | of an HIV test taken within 6 months before the significant |
| 186 | exposure if such test results are negative. |
| 187 | d. A person who receives the results of an HIV test |
| 188 | pursuant to this subparagraph shall comply with paragraph (e). |
| 189 | 13. For the performance of an HIV-related test medically |
| 190 | indicated by licensed medical personnel for medical diagnosis of |
| 191 | a hospitalized infant as necessary to provide appropriate care |
| 192 | and treatment of the infant when, after a reasonable attempt, a |
| 193 | parent cannot be contacted to provide consent. The medical |
| 194 | records of the infant shall reflect the reason consent of the |
| 195 | parent was not initially obtained. Test results shall be |
| 196 | provided to the parent when the parent is located. |
| 197 | 14. For the performance of HIV testing conducted to |
| 198 | monitor the clinical progress of a patient previously diagnosed |
| 199 | to be HIV positive. |
| 200 | 15. For the performance of repeated HIV testing conducted |
| 201 | to monitor possible conversion from a significant exposure. |
| 202 | Section 2. Section 384.25, Florida Statutes, is amended to |
| 203 | read: |
| 204 | 384.25 Reporting required.-- |
| 205 | (1) Each person who makes a diagnosis of or treats a |
| 206 | person with a sexually transmissible disease and each laboratory |
| 207 | that performs a test for a sexually transmissible disease which |
| 208 | either concludes with a positive result for a sexually |
| 209 | transmissible disease or a result indicative of human |
| 210 | immunodeficiency virus (HIV) or acquired immune deficiency |
| 211 | syndrome (AIDS) shall report such facts as may be required by |
| 212 | the department by rule, within a time period as specified by |
| 213 | rule of the department, but in no case to exceed 2 weeks. |
| 214 | (2) The department shall adopt rules specifying the |
| 215 | information required in and the maximum a minimum time period |
| 216 | for reporting a sexually transmissible disease. In adopting such |
| 217 | rules, the department shall consider the need for information, |
| 218 | protections for the privacy and confidentiality of the patient, |
| 219 | and the practical ability of persons and laboratories to report |
| 220 | in a reasonable fashion. |
| 221 | (3) To ensure the confidentiality of persons infected with |
| 222 | the human immunodeficiency virus (HIV), reporting of HIV |
| 223 | infection and AIDS acquired immune deficiency syndrome (AIDS) |
| 224 | must be conducted using a system the HIV/AIDS Reporting System |
| 225 | (HARS) developed by the Centers for Disease Control and |
| 226 | Prevention of the United States Public Health Service or an |
| 227 | equivalent system. |
| 228 | (a) The department shall adopt rules requiring each |
| 229 | physician and laboratory to report any newborn or infant up to |
| 230 | 18 months of age who has been exposed to HIV. Such rules may |
| 231 | include the method and time period for reporting which may not |
| 232 | exceed 2 weeks, information to be included in the report, |
| 233 | enforcement requirements, and followup activities by the |
| 234 | department. |
| 235 | (3) The department shall require reporting of physician |
| 236 | diagnosed cases of AIDS based upon diagnostic criteria from the |
| 237 | Centers for Disease Control and Prevention. |
| 238 | (b)(4) The department may require physician and laboratory |
| 239 | reporting of HIV infection. However, only reports of HIV |
| 240 | infection identified on or after the effective date of the rule |
| 241 | developed by the department pursuant to this subsection shall be |
| 242 | accepted. The reporting may not affect or relate to anonymous |
| 243 | HIV testing programs conducted pursuant to s. 381.004(4) or to |
| 244 | university-based medical research protocols as determined by the |
| 245 | department. |
| 246 | (c)(5) After notification of the test subject under |
| 247 | subsection (4), the department may, with the consent of the test |
| 248 | subject, notify school superintendents of students and school |
| 249 | personnel whose HIV tests are positive. |
| 250 | (6) The department shall by February 1 of each year submit |
| 251 | to the Legislature an annual report relating to all information |
| 252 | obtained pursuant to this section. |
| 253 | (4)(7) Each person who violates the provisions of this |
| 254 | section or the rules adopted hereunder may be fined by the |
| 255 | department up to $500 for each offense. The department shall |
| 256 | report each violation of this section to the regulatory agency |
| 257 | responsible for licensing each health care professional and each |
| 258 | laboratory to which these provisions apply. |
| 259 | Section 3. Section 384.31, Florida Statutes, is amended to |
| 260 | read: |
| 261 | 384.31 Serological testing of pregnant women; duty of the |
| 262 | attendant.-- |
| 263 | (1) Every person, including every physician licensed under |
| 264 | chapter 458 or chapter 459 or midwife licensed under part I of |
| 265 | chapter 464 or chapter 467, attending a pregnant woman for |
| 266 | conditions relating to pregnancy during the period of gestation |
| 267 | and delivery shall take or cause the woman to be tested for |
| 268 | sexually transmissible diseases, including HIV, as taken a |
| 269 | sample of venous blood at a time or times specified by the |
| 270 | department rule. Testing Each sample of blood shall be conducted |
| 271 | tested by a laboratory approved for such purposes under part I |
| 272 | of chapter 483 for sexually transmissible diseases as required |
| 273 | by rule of the department. |
| 274 | (2) At the time the venous blood sample is taken, testing |
| 275 | for human immunodeficiency virus (HIV) infection shall be |
| 276 | offered to each pregnant woman. The prevailing professional |
| 277 | standard of care in this state requires each health care |
| 278 | provider and midwife who attends a pregnant woman to counsel the |
| 279 | woman to be tested for human immunodeficiency virus (HIV). |
| 280 | Counseling shall include a discussion of the availability of |
| 281 | treatment if the pregnant woman tests HIV positive. If a |
| 282 | pregnant woman objects to HIV testing, reasonable steps shall be |
| 283 | taken to obtain a written statement of such objection, signed by |
| 284 | the patient, which shall be placed in the patient's medical |
| 285 | record. Every person, including every physician licensed under |
| 286 | chapter 458 or chapter 459 or midwife licensed under part I of |
| 287 | chapter 464 or chapter 467, who attends a pregnant woman who has |
| 288 | been offered and objects to HIV testing shall be immune from |
| 289 | liability arising out of or related to the contracting of HIV |
| 290 | infection or acquired immune deficiency syndrome (AIDS) by the |
| 291 | child from the mother. |
| 292 |
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| 293 | ================ T I T L E A M E N D M E N T ============= |
| 294 | Remove line(s) 5-20 and insert: |
| 295 | amending s. 384.25, F.S.; requiring certain positive test |
| 296 | results to be reported to the Department of Health within |
| 297 | a specified period of time; revising provisions relating |
| 298 | to method of reporting of test results, time period during |
| 299 | which the reports must be made, content of reports, |
| 300 | enforcement requirements, and followup activities and |
| 301 | requiring the department to adopt rules therefor; deleting |
| 302 | requirement that the department submit certain reports; |
| 303 | amending s. 384.31, F.S.; requiring testing of pregnant |
| 304 | women for sexually transmissible diseases; providing an |
| 305 | effective date. |