| 1 | The Criminal Justice Committee recommends the following: |
| 2 |
|
| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to the testing of inmates for HIV |
| 7 | infection in county and municipal detention facilities; |
| 8 | amending s. 951.27, F.S.; authorizing counties and |
| 9 | municipalities to participate in a program to test each |
| 10 | sentenced inmate for HIV before the inmate is released if |
| 11 | the inmate's HIV status is unknown; providing certain |
| 12 | exceptions; requiring that certain county and municipal |
| 13 | detention facilities notify the Department of Health and |
| 14 | the county health department in the county where the |
| 15 | inmate plans to reside following release if the inmate is |
| 16 | HIV positive; requiring certain detention facilities to |
| 17 | provide special transitional assistance to an inmate who |
| 18 | is HIV positive; providing for immunity for complying |
| 19 | entities; amending s. 381.004, F.S.; providing that |
| 20 | informed consent is not required for an HIV test of an |
| 21 | inmate before the inmate's release from a municipal or |
| 22 | county detention facility; providing an effective date. |
| 23 |
|
| 24 | Be It Enacted by the Legislature of the State of Florida: |
| 25 |
|
| 26 | Section 1. Section 951.27, Florida Statutes, is amended to |
| 27 | read: |
| 28 | 951.27 Blood tests of inmates.-- |
| 29 | (1) Each county and each municipal detention facility |
| 30 | shall have a written procedure developed, in consultation with |
| 31 | the facility medical provider, establishing conditions under |
| 32 | which an inmate will be tested for infectious disease, including |
| 33 | human immunodeficiency virus pursuant to s. 775.0877, which |
| 34 | procedure is consistent with guidelines of the Centers for |
| 35 | Disease Control and Prevention and recommendations of the |
| 36 | Correctional Medical Authority. It is not unlawful for the |
| 37 | person receiving the test results to divulge the test results to |
| 38 | the sheriff or chief correctional officer. |
| 39 | (2)(a) Each county or municipality has the local option, |
| 40 | if authorized by a majority of the respective county's or |
| 41 | municipality's governing body, to participate in the testing |
| 42 | program provided in this subsection. The county or municipal |
| 43 | detention facility that lies within the authority of any |
| 44 | participating county or municipality shall, consistent with s. |
| 45 | 381.004(3), perform an HIV test as defined in s. 381.004(2) on |
| 46 | each sentenced inmate who is to be released from the facility |
| 47 | unless the facility knows that the inmate is HIV positive or |
| 48 | unless, within 120 days before the release date, the inmate has |
| 49 | been tested for HIV and does not request retesting. The required |
| 50 | test must be performed not less than 30 days before the release |
| 51 | date of the inmate. A test is not required under this paragraph |
| 52 | if an inmate is released due to an emergency or a court order |
| 53 | and the detention facility receives less than 30 days' notice of |
| 54 | the release date or if the inmate is transferred to the custody |
| 55 | of the Department of Corrections for incarceration in the state |
| 56 | correctional system. |
| 57 | (b) Each county or municipal detention facility that |
| 58 | elects to participate in the testing program authorized in |
| 59 | paragraph (a) must comply with the requirements of this |
| 60 | paragraph. If the county or municipal detention facility knows |
| 61 | that an inmate who is to be released from the facility is HIV |
| 62 | positive or has received a positive HIV test result, that |
| 63 | facility shall, before the inmate is released: |
| 64 | 1. Notify, consistent with s. 381.004(3), the Department |
| 65 | of Health and the county health department in the county where |
| 66 | the inmate being released plans to reside of the release date |
| 67 | and HIV status of the inmate. |
| 68 | 2. Provide special transitional assistance to the inmate, |
| 69 | which must include: |
| 70 | a. Education on preventing the transmission of HIV to |
| 71 | others and on the importance of receiving followup medical care |
| 72 | and treatment. |
| 73 | b. A written, individualized discharge plan that includes |
| 74 | records of all laboratory and diagnostic test results, |
| 75 | medication and treatment information, and referrals to and |
| 76 | contacts with the county health department and local primary |
| 77 | medical care services for the treatment of HIV infection which |
| 78 | are available in the area where the inmate plans to reside. |
| 79 | (3)(2) Except as otherwise provided in this subsection, |
| 80 | serologic blood test results obtained pursuant to subsection (1) |
| 81 | or subsection (2) are confidential and exempt from the |
| 82 | provisions of s. 119.07(1) and s. 24(a), Art. I of the State |
| 83 | Constitution. However, such results may be provided to employees |
| 84 | or officers of the sheriff or chief correctional officer who are |
| 85 | responsible for the custody and care of the affected inmate and |
| 86 | have a need to know such information, and as provided in ss. |
| 87 | 381.004(3), 775.0877, and 960.003. In addition, upon request of |
| 88 | the victim or the victim's legal guardian, or the parent or |
| 89 | legal guardian of the victim if the victim is a minor, the |
| 90 | results of any HIV test performed on an inmate who has been |
| 91 | arrested for any sexual offense involving oral, anal, or vaginal |
| 92 | penetration by, or union with, the sexual organ of another, |
| 93 | shall be disclosed to the victim or the victim's legal guardian, |
| 94 | or to the parent or legal guardian of the victim if the victim |
| 95 | is a minor. In such cases, the county or municipal detention |
| 96 | facility shall furnish the test results to the Department of |
| 97 | Health, which is responsible for disclosing the results to |
| 98 | public health agencies as provided in s. 775.0877 and to the |
| 99 | victim or the victim's legal guardian, or the parent or legal |
| 100 | guardian of the victim if the victim is a minor, as provided in |
| 101 | s. 960.003(3). |
| 102 | (4)(3) The results of any serologic blood test on an |
| 103 | inmate are a part of that inmate's permanent medical file. Upon |
| 104 | transfer of the inmate to any other correctional facility, such |
| 105 | file is also transferred, and all relevant authorized persons |
| 106 | must be notified of positive HIV test results, as required in s. |
| 107 | 775.0877. |
| 108 | (5) Notwithstanding any statute providing for a waiver of |
| 109 | sovereign immunity, the state, its agencies, or subdivisions, |
| 110 | and employees of the state, its agencies, or subdivisions, are |
| 111 | not liable to any person for negligently causing death or |
| 112 | personal injury arising out of complying with this section. |
| 113 | Section 2. Subsection (3) of section 381.004, Florida |
| 114 | Statutes, is amended to read: |
| 115 | 381.004 HIV testing.-- |
| 116 | (3) HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED |
| 117 | CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.-- |
| 118 | (a) No person in this state shall order a test designed to |
| 119 | identify the human immunodeficiency virus, or its antigen or |
| 120 | antibody, without first obtaining the informed consent of the |
| 121 | person upon whom the test is being performed, except as |
| 122 | specified in paragraph (h). Informed consent shall be preceded |
| 123 | by an explanation of the right to confidential treatment of |
| 124 | information identifying the subject of the test and the results |
| 125 | of the test to the extent provided by law. Information shall |
| 126 | also be provided on the fact that a positive HIV test result |
| 127 | will be reported to the county health department with sufficient |
| 128 | information to identify the test subject and on the availability |
| 129 | and location of sites at which anonymous testing is performed. |
| 130 | As required in paragraph (4)(c), each county health department |
| 131 | shall maintain a list of sites at which anonymous testing is |
| 132 | performed, including the locations, phone numbers, and hours of |
| 133 | operation of the sites. Consent need not be in writing provided |
| 134 | there is documentation in the medical record that the test has |
| 135 | been explained and the consent has been obtained. |
| 136 | (b) Except as provided in paragraph (h), informed consent |
| 137 | must be obtained from a legal guardian or other person |
| 138 | authorized by law when the person: |
| 139 | 1. Is not competent, is incapacitated, or is otherwise |
| 140 | unable to make an informed judgment; or |
| 141 | 2. Has not reached the age of majority, except as provided |
| 142 | in s. 384.30. |
| 143 | (c) The person ordering the test or that person's designee |
| 144 | shall ensure that all reasonable efforts are made to notify the |
| 145 | test subject of his or her test result. Notification of a person |
| 146 | with a positive test result shall include information on the |
| 147 | availability of appropriate medical and support services, on the |
| 148 | importance of notifying partners who may have been exposed, and |
| 149 | on preventing transmission of HIV. Notification of a person with |
| 150 | a negative test result shall include, as appropriate, |
| 151 | information on preventing the transmission of HIV. When testing |
| 152 | occurs in a hospital emergency department, detention facility, |
| 153 | or other facility and the test subject has been released before |
| 154 | being notified of positive test results, informing the county |
| 155 | health department for that department to notify the test subject |
| 156 | fulfills this responsibility. |
| 157 | (d) A positive preliminary test result may not be revealed |
| 158 | to any person except in the following situations: |
| 159 | 1. Preliminary test results may be released to licensed |
| 160 | physicians or the medical or nonmedical personnel subject to the |
| 161 | significant exposure for purposes of subparagraphs (h)10., 11., |
| 162 | and 12. |
| 163 | 2. Preliminary test results may be released to health care |
| 164 | providers and to the person tested when decisions about medical |
| 165 | care or treatment of, or recommendation to, the person tested |
| 166 | and, in the case of an intrapartum or postpartum woman, when |
| 167 | care, treatment, or recommendations regarding her newborn, |
| 168 | cannot await the results of confirmatory testing. Positive |
| 169 | preliminary HIV test results may not be characterized to the |
| 170 | patient as a diagnosis of HIV infection. Justification for the |
| 171 | use of preliminary test results must be documented in the |
| 172 | medical record by the health care provider who ordered the test. |
| 173 | 3. The results of rapid testing technologies shall be |
| 174 | considered preliminary and may be released in accordance with |
| 175 | the manufacturer's instructions as approved by the federal Food |
| 176 | and Drug Administration. |
| 177 | 4. Corroborating or confirmatory testing must be conducted |
| 178 | as followup to a positive preliminary test. Results shall be |
| 179 | communicated to the patient according to statute regardless of |
| 180 | the outcome. Except as provided in this section, test results |
| 181 | are confidential and exempt from the provisions of s. 119.07(1). |
| 182 | (e) Except as provided in this section, the identity of |
| 183 | any person upon whom a test has been performed and test results |
| 184 | are confidential and exempt from the provisions of s. 119.07(1). |
| 185 | No person who has obtained or has knowledge of a test result |
| 186 | pursuant to this section may disclose or be compelled to |
| 187 | disclose the identity of any person upon whom a test is |
| 188 | performed, or the results of such a test in a manner which |
| 189 | permits identification of the subject of the test, except to the |
| 190 | following persons: |
| 191 | 1. The subject of the test or the subject's legally |
| 192 | authorized representative. |
| 193 | 2. Any person, including third-party payors, designated in |
| 194 | a legally effective release of the test results executed prior |
| 195 | to or after the test by the subject of the test or the subject's |
| 196 | legally authorized representative. The test subject may in |
| 197 | writing authorize the disclosure of the test subject's HIV test |
| 198 | results to third party payors, who need not be specifically |
| 199 | identified, and to other persons to whom the test subject |
| 200 | subsequently issues a general release of medical information. A |
| 201 | general release without such prior written authorization is not |
| 202 | sufficient to release HIV test results. |
| 203 | 3. An authorized agent or employee of a health facility or |
| 204 | health care provider if the health facility or health care |
| 205 | provider itself is authorized to obtain the test results, the |
| 206 | agent or employee participates in the administration or |
| 207 | provision of patient care or handles or processes specimens of |
| 208 | body fluids or tissues, and the agent or employee has a need to |
| 209 | know such information. The department shall adopt a rule |
| 210 | defining which persons have a need to know pursuant to this |
| 211 | subparagraph. |
| 212 | 4. Health care providers consulting between themselves or |
| 213 | with health care facilities to determine diagnosis and |
| 214 | treatment. For purposes of this subparagraph, health care |
| 215 | providers shall include licensed health care professionals |
| 216 | employed by or associated with state, county, or municipal |
| 217 | detention facilities when such health care professionals are |
| 218 | acting exclusively for the purpose of providing diagnoses or |
| 219 | treatment of persons in the custody of such facilities. |
| 220 | 5. The department, in accordance with rules for reporting |
| 221 | and controlling the spread of disease, as otherwise provided by |
| 222 | state law. |
| 223 | 6. A health facility or health care provider which |
| 224 | procures, processes, distributes, or uses: |
| 225 | a. A human body part from a deceased person, with respect |
| 226 | to medical information regarding that person; or |
| 227 | b. Semen provided prior to July 6, 1988, for the purpose |
| 228 | of artificial insemination. |
| 229 | 7. Health facility staff committees, for the purposes of |
| 230 | conducting program monitoring, program evaluation, or service |
| 231 | reviews pursuant to chapters 395 and 766. |
| 232 | 8. Authorized medical or epidemiological researchers who |
| 233 | may not further disclose any identifying characteristics or |
| 234 | information. |
| 235 | 9. A person allowed access by a court order which is |
| 236 | issued in compliance with the following provisions: |
| 237 | a. No court of this state shall issue such order unless |
| 238 | the court finds that the person seeking the test results has |
| 239 | demonstrated a compelling need for the test results which cannot |
| 240 | be accommodated by other means. In assessing compelling need, |
| 241 | the court shall weigh the need for disclosure against the |
| 242 | privacy interest of the test subject and the public interest |
| 243 | which may be disserved by disclosure which deters blood, organ, |
| 244 | and semen donation and future human immunodeficiency virus- |
| 245 | related testing or which may lead to discrimination. This |
| 246 | paragraph shall not apply to blood bank donor records. |
| 247 | b. Pleadings pertaining to disclosure of test results |
| 248 | shall substitute a pseudonym for the true name of the subject of |
| 249 | the test. The disclosure to the parties of the subject's true |
| 250 | name shall be communicated confidentially in documents not filed |
| 251 | with the court. |
| 252 | c. Before granting any such order, the court shall provide |
| 253 | the individual whose test result is in question with notice and |
| 254 | a reasonable opportunity to participate in the proceedings if he |
| 255 | or she is not already a party. |
| 256 | d. Court proceedings as to disclosure of test results |
| 257 | shall be conducted in camera, unless the subject of the test |
| 258 | agrees to a hearing in open court or unless the court determines |
| 259 | that a public hearing is necessary to the public interest and |
| 260 | the proper administration of justice. |
| 261 | e. Upon the issuance of an order to disclose test results, |
| 262 | the court shall impose appropriate safeguards against |
| 263 | unauthorized disclosure which shall specify the persons who may |
| 264 | have access to the information, the purposes for which the |
| 265 | information shall be used, and appropriate prohibitions on |
| 266 | future disclosure. |
| 267 | 10. A person allowed access by order of a judge of |
| 268 | compensation claims of the Division of Administrative Hearings. |
| 269 | A judge of compensation claims shall not issue such order unless |
| 270 | he or she finds that the person seeking the test results has |
| 271 | demonstrated a compelling need for the test results which cannot |
| 272 | be accommodated by other means. |
| 273 | 11. Those employees of the department or of child-placing |
| 274 | or child-caring agencies or of family foster homes, licensed |
| 275 | pursuant to s. 409.175, who are directly involved in the |
| 276 | placement, care, control, or custody of such test subject and |
| 277 | who have a need to know such information; adoptive parents of |
| 278 | such test subject; or any adult custodian, any adult relative, |
| 279 | or any person responsible for the child's welfare, if the test |
| 280 | subject was not tested under subparagraph (b)2. and if a |
| 281 | reasonable attempt has been made to locate and inform the legal |
| 282 | guardian of a test result. The department shall adopt a rule to |
| 283 | implement this subparagraph. |
| 284 | 12. Those employees of residential facilities or of |
| 285 | community-based care programs that care for developmentally |
| 286 | disabled persons, pursuant to chapter 393, who are directly |
| 287 | involved in the care, control, or custody of such test subject |
| 288 | and who have a need to know such information. |
| 289 | 13. A health care provider involved in the delivery of a |
| 290 | child can note the mother's HIV test results in the child's |
| 291 | medical record. |
| 292 | 14. Medical personnel or nonmedical personnel who have |
| 293 | been subject to a significant exposure during the course of |
| 294 | medical practice or in the performance of professional duties, |
| 295 | or individuals who are the subject of the significant exposure |
| 296 | as provided in subparagraphs (h)10.-12. |
| 297 | 15. The medical examiner shall disclose positive HIV test |
| 298 | results to the department in accordance with rules for reporting |
| 299 | and controlling the spread of disease. |
| 300 | (f) Except as provided in this section, the identity of a |
| 301 | person upon whom a test has been performed is confidential and |
| 302 | exempt from the provisions of s. 119.07(1). No person to whom |
| 303 | the results of a test have been disclosed may disclose the test |
| 304 | results to another person except as authorized by this |
| 305 | subsection and by ss. 951.27 and 960.003. Whenever disclosure is |
| 306 | made pursuant to this subsection, it shall be accompanied by a |
| 307 | statement in writing which includes the following or |
| 308 | substantially similar language: "This information has been |
| 309 | disclosed to you from records whose confidentiality is protected |
| 310 | by state law. State law prohibits you from making any further |
| 311 | disclosure of such information without the specific written |
| 312 | consent of the person to whom such information pertains, or as |
| 313 | otherwise permitted by state law. A general authorization for |
| 314 | the release of medical or other information is NOT sufficient |
| 315 | for this purpose." An oral disclosure shall be accompanied by |
| 316 | oral notice and followed by a written notice within 10 days, |
| 317 | except that this notice shall not be required for disclosures |
| 318 | made pursuant to subparagraphs (e)3. and 4. |
| 319 | (g) Human immunodeficiency virus test results contained in |
| 320 | the medical records of a hospital licensed under chapter 395 may |
| 321 | be released in accordance with s. 395.3025 without being subject |
| 322 | to the requirements of subparagraph (e)2., subparagraph (e)9., |
| 323 | or paragraph (f); provided the hospital has obtained written |
| 324 | informed consent for the HIV test in accordance with provisions |
| 325 | of this section. |
| 326 | (h) Notwithstanding the provisions of paragraph (a), |
| 327 | informed consent is not required: |
| 328 | 1. When testing for sexually transmissible diseases is |
| 329 | required by state or federal law, or by rule including the |
| 330 | following situations: |
| 331 | a. HIV testing pursuant to s. 796.08 of persons convicted |
| 332 | of prostitution or of procuring another to commit prostitution. |
| 333 | b. HIV testing of inmates pursuant to s. 945.355 prior to |
| 334 | their release from prison by reason of parole, accumulation of |
| 335 | gain-time credits, or expiration of sentence. |
| 336 | c. Testing for HIV by a medical examiner in accordance |
| 337 | with s. 406.11. |
| 338 | d. HIV testing of pregnant women pursuant to s. 384.31. |
| 339 | e. HIV testing of inmates pursuant to s. 951.27 before |
| 340 | their release from a county or municipal detention facility. |
| 341 | 2. Those exceptions provided for blood, plasma, organs, |
| 342 | skin, semen, or other human tissue pursuant to s. 381.0041. |
| 343 | 3. For the performance of an HIV-related test by licensed |
| 344 | medical personnel in bona fide medical emergencies when the test |
| 345 | results are necessary for medical diagnostic purposes to provide |
| 346 | appropriate emergency care or treatment to the person being |
| 347 | tested and the patient is unable to consent, as supported by |
| 348 | documentation in the medical record. Notification of test |
| 349 | results in accordance with paragraph (c) is required. |
| 350 | 4. For the performance of an HIV-related test by licensed |
| 351 | medical personnel for medical diagnosis of acute illness where, |
| 352 | in the opinion of the attending physician, obtaining informed |
| 353 | consent would be detrimental to the patient, as supported by |
| 354 | documentation in the medical record, and the test results are |
| 355 | necessary for medical diagnostic purposes to provide appropriate |
| 356 | care or treatment to the person being tested. Notification of |
| 357 | test results in accordance with paragraph (c) is required if it |
| 358 | would not be detrimental to the patient. This subparagraph does |
| 359 | not authorize the routine testing of patients for HIV infection |
| 360 | without informed consent. |
| 361 | 5. When HIV testing is performed as part of an autopsy for |
| 362 | which consent was obtained pursuant to s. 872.04. |
| 363 | 6. For the performance of an HIV test upon a defendant |
| 364 | pursuant to the victim's request in a prosecution for any type |
| 365 | of sexual battery where a blood sample is taken from the |
| 366 | defendant voluntarily, pursuant to court order for any purpose, |
| 367 | or pursuant to the provisions of s. 775.0877, s. 951.27, or s. |
| 368 | 960.003; however, the results of any HIV test performed shall be |
| 369 | disclosed solely to the victim and the defendant, except as |
| 370 | provided in ss. 775.0877, 951.27, and 960.003. |
| 371 | 7. When an HIV test is mandated by court order. |
| 372 | 8. For epidemiological research pursuant to s. 381.0032, |
| 373 | for research consistent with institutional review boards created |
| 374 | by 45 C.F.R. part 46, or for the performance of an HIV-related |
| 375 | test for the purpose of research, if the testing is performed in |
| 376 | a manner by which the identity of the test subject is not known |
| 377 | and may not be retrieved by the researcher. |
| 378 | 9. When human tissue is collected lawfully without the |
| 379 | consent of the donor for corneal removal as authorized by s. |
| 380 | 765.5185 or enucleation of the eyes as authorized by s. 765.519. |
| 381 | 10. For the performance of an HIV test upon an individual |
| 382 | who comes into contact with medical personnel in such a way that |
| 383 | a significant exposure has occurred during the course of |
| 384 | employment or within the scope of practice and where a blood |
| 385 | sample is available that was taken from that individual |
| 386 | voluntarily by medical personnel for other purposes. The term |
| 387 | "medical personnel" includes a licensed or certified health care |
| 388 | professional; an employee of a health care professional or |
| 389 | health care facility; employees of a laboratory licensed under |
| 390 | chapter 483; personnel of a blood bank or plasma center; a |
| 391 | medical student or other student who is receiving training as a |
| 392 | health care professional at a health care facility; and a |
| 393 | paramedic or emergency medical technician certified by the |
| 394 | department to perform life-support procedures under s. 401.23. |
| 395 | a. Prior to performance of an HIV test on a voluntarily |
| 396 | obtained blood sample, the individual from whom the blood was |
| 397 | obtained shall be requested to consent to the performance of the |
| 398 | test and to the release of the results. The individual's refusal |
| 399 | to consent and all information concerning the performance of an |
| 400 | HIV test and any HIV test result shall be documented only in the |
| 401 | medical personnel's record unless the individual gives written |
| 402 | consent to entering this information on the individual's medical |
| 403 | record. |
| 404 | b. Reasonable attempts to locate the individual and to |
| 405 | obtain consent shall be made, and all attempts must be |
| 406 | documented. If the individual cannot be found, an HIV test may |
| 407 | be conducted on the available blood sample. If the individual |
| 408 | does not voluntarily consent to the performance of an HIV test, |
| 409 | the individual shall be informed that an HIV test will be |
| 410 | performed, and counseling shall be furnished as provided in this |
| 411 | section. However, HIV testing shall be conducted only after a |
| 412 | licensed physician documents, in the medical record of the |
| 413 | medical personnel, that there has been a significant exposure |
| 414 | and that, in the physician's medical judgment, the information |
| 415 | is medically necessary to determine the course of treatment for |
| 416 | the medical personnel. |
| 417 | c. Costs of any HIV test of a blood sample performed with |
| 418 | or without the consent of the individual, as provided in this |
| 419 | subparagraph, shall be borne by the medical personnel or the |
| 420 | employer of the medical personnel. However, costs of testing or |
| 421 | treatment not directly related to the initial HIV tests or costs |
| 422 | of subsequent testing or treatment may not be borne by the |
| 423 | medical personnel or the employer of the medical personnel. |
| 424 | d. In order to utilize the provisions of this |
| 425 | subparagraph, the medical personnel must either be tested for |
| 426 | HIV pursuant to this section or provide the results of an HIV |
| 427 | test taken within 6 months prior to the significant exposure if |
| 428 | such test results are negative. |
| 429 | e. A person who receives the results of an HIV test |
| 430 | pursuant to this subparagraph shall maintain the confidentiality |
| 431 | of the information received and of the persons tested. Such |
| 432 | confidential information is exempt from s. 119.07(1). |
| 433 | f. If the source of the exposure will not voluntarily |
| 434 | submit to HIV testing and a blood sample is not available, the |
| 435 | medical personnel or the employer of such person acting on |
| 436 | behalf of the employee may seek a court order directing the |
| 437 | source of the exposure to submit to HIV testing. A sworn |
| 438 | statement by a physician licensed under chapter 458 or chapter |
| 439 | 459 that a significant exposure has occurred and that, in the |
| 440 | physician's medical judgment, testing is medically necessary to |
| 441 | determine the course of treatment constitutes probable cause for |
| 442 | the issuance of an order by the court. The results of the test |
| 443 | shall be released to the source of the exposure and to the |
| 444 | person who experienced the exposure. |
| 445 | 11. For the performance of an HIV test upon an individual |
| 446 | who comes into contact with medical personnel in such a way that |
| 447 | a significant exposure has occurred during the course of |
| 448 | employment or within the scope of practice of the medical |
| 449 | personnel while the medical personnel provides emergency medical |
| 450 | treatment to the individual; or who comes into contact with |
| 451 | nonmedical personnel in such a way that a significant exposure |
| 452 | has occurred while the nonmedical personnel provides emergency |
| 453 | medical assistance during a medical emergency. For the purposes |
| 454 | of this subparagraph, a medical emergency means an emergency |
| 455 | medical condition outside of a hospital or health care facility |
| 456 | that provides physician care. The test may be performed only |
| 457 | during the course of treatment for the medical emergency. |
| 458 | a. An individual who is capable of providing consent shall |
| 459 | be requested to consent to an HIV test prior to the testing. The |
| 460 | individual's refusal to consent, and all information concerning |
| 461 | the performance of an HIV test and its result, shall be |
| 462 | documented only in the medical personnel's record unless the |
| 463 | individual gives written consent to entering this information on |
| 464 | the individual's medical record. |
| 465 | b. HIV testing shall be conducted only after a licensed |
| 466 | physician documents, in the medical record of the medical |
| 467 | personnel or nonmedical personnel, that there has been a |
| 468 | significant exposure and that, in the physician's medical |
| 469 | judgment, the information is medically necessary to determine |
| 470 | the course of treatment for the medical personnel or nonmedical |
| 471 | personnel. |
| 472 | c. Costs of any HIV test performed with or without the |
| 473 | consent of the individual, as provided in this subparagraph, |
| 474 | shall be borne by the medical personnel or the employer of the |
| 475 | medical personnel or nonmedical personnel. However, costs of |
| 476 | testing or treatment not directly related to the initial HIV |
| 477 | tests or costs of subsequent testing or treatment may not be |
| 478 | borne by the medical personnel or the employer of the medical |
| 479 | personnel or nonmedical personnel. |
| 480 | d. In order to utilize the provisions of this |
| 481 | subparagraph, the medical personnel or nonmedical personnel |
| 482 | shall be tested for HIV pursuant to this section or shall |
| 483 | provide the results of an HIV test taken within 6 months prior |
| 484 | to the significant exposure if such test results are negative. |
| 485 | e. A person who receives the results of an HIV test |
| 486 | pursuant to this subparagraph shall maintain the confidentiality |
| 487 | of the information received and of the persons tested. Such |
| 488 | confidential information is exempt from s. 119.07(1). |
| 489 | f. If the source of the exposure will not voluntarily |
| 490 | submit to HIV testing and a blood sample was not obtained during |
| 491 | treatment for the medical emergency, the medical personnel, the |
| 492 | employer of the medical personnel acting on behalf of the |
| 493 | employee, or the nonmedical personnel may seek a court order |
| 494 | directing the source of the exposure to submit to HIV testing. A |
| 495 | sworn statement by a physician licensed under chapter 458 or |
| 496 | chapter 459 that a significant exposure has occurred and that, |
| 497 | in the physician's medical judgment, testing is medically |
| 498 | necessary to determine the course of treatment constitutes |
| 499 | probable cause for the issuance of an order by the court. The |
| 500 | results of the test shall be released to the source of the |
| 501 | exposure and to the person who experienced the exposure. |
| 502 | 12. For the performance of an HIV test by the medical |
| 503 | examiner or attending physician upon an individual who expired |
| 504 | or could not be resuscitated while receiving emergency medical |
| 505 | assistance or care and who was the source of a significant |
| 506 | exposure to medical or nonmedical personnel providing such |
| 507 | assistance or care. |
| 508 | a. HIV testing may be conducted only after a licensed |
| 509 | physician documents in the medical record of the medical |
| 510 | personnel or nonmedical personnel that there has been a |
| 511 | significant exposure and that, in the physician's medical |
| 512 | judgment, the information is medically necessary to determine |
| 513 | the course of treatment for the medical personnel or nonmedical |
| 514 | personnel. |
| 515 | b. Costs of any HIV test performed under this subparagraph |
| 516 | may not be charged to the deceased or to the family of the |
| 517 | deceased person. |
| 518 | c. For the provisions of this subparagraph to be |
| 519 | applicable, the medical personnel or nonmedical personnel must |
| 520 | be tested for HIV under this section or must provide the results |
| 521 | of an HIV test taken within 6 months before the significant |
| 522 | exposure if such test results are negative. |
| 523 | d. A person who receives the results of an HIV test |
| 524 | pursuant to this subparagraph shall comply with paragraph (e). |
| 525 | 13. For the performance of an HIV-related test medically |
| 526 | indicated by licensed medical personnel for medical diagnosis of |
| 527 | a hospitalized infant as necessary to provide appropriate care |
| 528 | and treatment of the infant when, after a reasonable attempt, a |
| 529 | parent cannot be contacted to provide consent. The medical |
| 530 | records of the infant shall reflect the reason consent of the |
| 531 | parent was not initially obtained. Test results shall be |
| 532 | provided to the parent when the parent is located. |
| 533 | 14. For the performance of HIV testing conducted to |
| 534 | monitor the clinical progress of a patient previously diagnosed |
| 535 | to be HIV positive. |
| 536 | 15. For the performance of repeated HIV testing conducted |
| 537 | to monitor possible conversion from a significant exposure. |
| 538 | Section 3. This act shall take effect July 1, 2006. |