CS/HB 1035

1	A bill to be entitled
2	An act relating to human immunodeficiency virus testing;
3	amending s. 381.004, F.S.; providing conditions under
4	which an HIV test on a blood sample of an individual who
5	has not given consent may be performed; requiring
6	documentation by certain medical personnel under
7	supervision of a licensed physician prior to testing in
8	accordance with written protocols based on specified
9	National Centers for Disease Control and Prevention
10	guidelines; providing an effective date.
11
12	Be It Enacted by the Legislature of the State of Florida:
13
14	Section 1.  Paragraph (h) of subsection (3) of section
15	381.004, Florida Statutes, is amended to read:
16	381.004  HIV testing.--
17	(3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED
18	CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--
19	(h)  Notwithstanding the provisions of paragraph (a),
20	informed consent is not required:
21	1.  When testing for sexually transmissible diseases is
22	required by state or federal law, or by rule including the
23	following situations:
24	a.  HIV testing pursuant to s. 796.08 of persons convicted
25	of prostitution or of procuring another to commit prostitution.
26	b.  HIV testing of inmates pursuant to s. 945.355 prior to
27	their release from prison by reason of parole, accumulation of
28	gain-time credits, or expiration of sentence.
29	c.  Testing for HIV by a medical examiner in accordance
30	with s. 406.11.
31	d.  HIV testing of pregnant women pursuant to s. 384.31.
32	2.  Those exceptions provided for blood, plasma, organs,
33	skin, semen, or other human tissue pursuant to s. 381.0041.
34	3.  For the performance of an HIV-related test by licensed
35	medical personnel in bona fide medical emergencies when the test
36	results are necessary for medical diagnostic purposes to provide
37	appropriate emergency care or treatment to the person being
38	tested and the patient is unable to consent, as supported by
39	documentation in the medical record. Notification of test
40	results in accordance with paragraph (c) is required.
41	4.  For the performance of an HIV-related test by licensed
42	medical personnel for medical diagnosis of acute illness where,
43	in the opinion of the attending physician, obtaining informed
44	consent would be detrimental to the patient, as supported by
45	documentation in the medical record, and the test results are
46	necessary for medical diagnostic purposes to provide appropriate
47	care or treatment to the person being tested. Notification of
48	test results in accordance with paragraph (c) is required if it
49	would not be detrimental to the patient. This subparagraph does
50	not authorize the routine testing of patients for HIV infection
51	without informed consent.
52	5.  When HIV testing is performed as part of an autopsy for
53	which consent was obtained pursuant to s. 872.04.
54	6.  For the performance of an HIV test upon a defendant
55	pursuant to the victim's request in a prosecution for any type
56	of sexual battery where a blood sample is taken from the
57	defendant voluntarily, pursuant to court order for any purpose,
58	or pursuant to the provisions of s. 775.0877, s. 951.27, or s.
59	960.003; however, the results of any HIV test performed shall be
60	disclosed solely to the victim and the defendant, except as
61	provided in ss. 775.0877, 951.27, and 960.003.
62	7.  When an HIV test is mandated by court order.
63	8.  For epidemiological research pursuant to s. 381.0032,
64	for research consistent with institutional review boards created
65	by 45 C.F.R. part 46, or for the performance of an HIV-related
66	test for the purpose of research, if the testing is performed in
67	a manner by which the identity of the test subject is not known
68	and may not be retrieved by the researcher.
69	9.  When human tissue is collected lawfully without the
70	consent of the donor for corneal removal as authorized by s.
71	765.5185 or enucleation of the eyes as authorized by s. 765.519.
72	10.  For the performance of an HIV test upon an individual
73	who comes into contact with medical personnel in such a way that
74	a significant exposure has occurred during the course of
75	employment or within the scope of practice and where a blood
76	sample is available that was taken from that individual
77	voluntarily by medical personnel for other purposes. The term
78	"medical personnel" includes a licensed or certified health care
79	professional; an employee of a health care professional or
80	health care facility; employees of a laboratory licensed under
81	chapter 483; personnel of a blood bank or plasma center; a
82	medical student or other student who is receiving training as a
83	health care professional at a health care facility; and a
84	paramedic or emergency medical technician certified by the
85	department to perform life-support procedures under s. 401.23.
86	a.  Prior to performance of an HIV test on a voluntarily
87	obtained blood sample, the individual from whom the blood was
88	obtained shall be requested to consent to the performance of the
89	test and to the release of the results. If consent cannot be
90	obtained within the time period necessary to perform the HIV
91	test and begin prophylactic treatment of the exposed medical
92	personnel, The individual's refusal to consent and all
93	information concerning the performance of an HIV test and any
94	HIV test result shall be documented only in the medical
95	personnel's record unless the individual gives written consent
96	to entering this information on the individual's medical record.
97	b.  Reasonable attempts to locate the individual and to
98	obtain consent shall be made, and all attempts must be
99	documented. If the individual cannot be found or is incapable of
100	providing consent, an HIV test may be conducted on the available
101	blood sample. If the individual does not voluntarily consent to
102	the performance of an HIV test, the individual shall be informed
103	that an HIV test will be performed, and counseling shall be
104	furnished as provided in this section. However, HIV testing
105	shall be conducted only after appropriate medical personnel
106	under the supervision of a licensed physician document
107	documents, in the medical record of the medical personnel, that
108	there has been a significant exposure and that, in accordance
109	with the written protocols based on the National Centers for
110	Disease Control and Prevention guidelines on HIV postexposure
111	prophylaxis and in the physician's medical judgment, the
112	information is medically necessary to determine the course of
113	treatment for the medical personnel.
114	c.  Costs of any HIV test of a blood sample performed with
115	or without the consent of the individual, as provided in this
116	subparagraph, shall be borne by the medical personnel or the
117	employer of the medical personnel. However, costs of testing or
118	treatment not directly related to the initial HIV tests or costs
119	of subsequent testing or treatment may not be borne by the
120	medical personnel or the employer of the medical personnel.
121	d.  In order to utilize the provisions of this
122	subparagraph, the medical personnel must either be tested for
123	HIV pursuant to this section or provide the results of an HIV
124	test taken within 6 months prior to the significant exposure if
125	such test results are negative.
126	e.  A person who receives the results of an HIV test
127	pursuant to this subparagraph shall maintain the confidentiality
128	of the information received and of the persons tested. Such
129	confidential information is exempt from s. 119.07(1).
130	f.  If the source of the exposure will not voluntarily
131	submit to HIV testing and a blood sample is not available, the
132	medical personnel or the employer of such person acting on
133	behalf of the employee may seek a court order directing the
134	source of the exposure to submit to HIV testing. A sworn
135	statement by a physician licensed under chapter 458 or chapter
136	459 that a significant exposure has occurred and that, in the
137	physician's medical judgment, testing is medically necessary to
138	determine the course of treatment constitutes probable cause for
139	the issuance of an order by the court. The results of the test
140	shall be released to the source of the exposure and to the
141	person who experienced the exposure.
142	11.  For the performance of an HIV test upon an individual
143	who comes into contact with medical personnel in such a way that
144	a significant exposure has occurred during the course of
145	employment or within the scope of practice of the medical
146	personnel while the medical personnel provides emergency medical
147	treatment to the individual; or, notwithstanding s. 384.287, an
148	individual who comes into contact with nonmedical personnel in
149	such a way that a significant exposure has occurred while the
150	nonmedical personnel provides emergency medical assistance
151	during a medical emergency. For the purposes of this
152	subparagraph, a medical emergency means an emergency medical
153	condition outside of a hospital or health care facility that
154	provides physician care. The test may be performed only during
155	the course of treatment for the medical emergency.
156	a.  An individual who is capable of providing consent shall
157	be requested to consent to an HIV test prior to the testing. If
158	consent cannot be obtained within the time period necessary to
159	perform the HIV test and begin prophylactic treatment of the
160	exposed medical or nonmedical personnel, The individual's
161	refusal to consent, and all information concerning the
162	performance of an HIV test and its result, shall be documented
163	only in the medical or nonmedical personnel's record unless the
164	individual gives written consent to entering this information on
165	the individual's medical record.
166	b.  HIV testing shall be conducted only after appropriate
167	medical personnel under the supervision of a licensed physician
168	document documents, in the medical record of the medical
169	personnel or nonmedical personnel, that there has been a
170	significant exposure and that, in accordance with the written
171	protocols based on the National Centers for Disease Control and
172	Prevention guidelines on HIV postexposure prophylaxis and in the
173	physician's medical judgment, the information is medically
174	necessary to determine the course of treatment for the medical
175	personnel or nonmedical personnel.
176	c.  Costs of any HIV test performed with or without the
177	consent of the individual, as provided in this subparagraph,
178	shall be borne by the medical personnel or the employer of the
179	medical personnel or nonmedical personnel. However, costs of
180	testing or treatment not directly related to the initial HIV
181	tests or costs of subsequent testing or treatment may not be
182	borne by the medical personnel or the employer of the medical
183	personnel or nonmedical personnel.
184	d.  In order to utilize the provisions of this
185	subparagraph, the medical personnel or nonmedical personnel
186	shall be tested for HIV pursuant to this section or shall
187	provide the results of an HIV test taken within 6 months prior
188	to the significant exposure if such test results are negative.
189	e.  A person who receives the results of an HIV test
190	pursuant to this subparagraph shall maintain the confidentiality
191	of the information received and of the persons tested. Such
192	confidential information is exempt from s. 119.07(1).
193	f.  If the source of the exposure will not voluntarily
194	submit to HIV testing and a blood sample was not obtained during
195	treatment for the medical emergency, the medical personnel, the
196	employer of the medical personnel acting on behalf of the
197	employee, or the nonmedical personnel may seek a court order
198	directing the source of the exposure to submit to HIV testing. A
199	sworn statement by a physician licensed under chapter 458 or
200	chapter 459 that a significant exposure has occurred and that,
201	in the physician's medical judgment, testing is medically
202	necessary to determine the course of treatment constitutes
203	probable cause for the issuance of an order by the court. The
204	results of the test shall be released to the source of the
205	exposure and to the person who experienced the exposure.
206	12.  For the performance of an HIV test by the medical
207	examiner or attending physician upon an individual who expired
208	or could not be resuscitated while receiving emergency medical
209	assistance or care and who was the source of a significant
210	exposure to medical or nonmedical personnel providing such
211	assistance or care.
212	a.  HIV testing may be conducted only after appropriate
213	medical personnel under the supervision of a licensed physician
214	document, documents in the medical record of the medical
215	personnel or nonmedical personnel, that there has been a
216	significant exposure and that, in accordance with the written
217	protocols based on the National Centers for Disease Control and
218	Prevention guidelines on HIV postexposure prophylaxis and in the
219	physician's medical judgment, the information is medically
220	necessary to determine the course of treatment for the medical
221	personnel or nonmedical personnel.
222	b.  Costs of any HIV test performed under this subparagraph
223	may not be charged to the deceased or to the family of the
224	deceased person.
225	c.  For the provisions of this subparagraph to be
226	applicable, the medical personnel or nonmedical personnel must
227	be tested for HIV under this section or must provide the results
228	of an HIV test taken within 6 months before the significant
229	exposure if such test results are negative.
230	d.  A person who receives the results of an HIV test
231	pursuant to this subparagraph shall comply with paragraph (e).
232	13.  For the performance of an HIV-related test medically
233	indicated by licensed medical personnel for medical diagnosis of
234	a hospitalized infant as necessary to provide appropriate care
235	and treatment of the infant when, after a reasonable attempt, a
236	parent cannot be contacted to provide consent. The medical
237	records of the infant shall reflect the reason consent of the
238	parent was not initially obtained. Test results shall be
239	provided to the parent when the parent is located.
240	14.  For the performance of HIV testing conducted to
241	monitor the clinical progress of a patient previously diagnosed
242	to be HIV positive.
243	15.  For the performance of repeated HIV testing conducted
244	to monitor possible conversion from a significant exposure.
245	Section 2.  This act shall take effect July 1, 2008.

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