Florida Senate - 2013                                    SB 1328
       
       
       
       By Senator Garcia
       
       
       
       
       38-01030-13                                           20131328__
    1                        A bill to be entitled                      
    2         An act relating to testing for the human
    3         immunodeficiency virus; amending s. 381.004, F.S.;
    4         providing definitions; providing that informed consent
    5         to perform an HIV test to identify the human
    6         immunodeficiency virus, or its antigen or antibody,
    7         must be obtained from a legal guardian or other person
    8         authorized by law for certain persons; revising the
    9         situations in which test results may be released;
   10         amending ss. 381.0041, 456.032, 627.429, 641.3007,
   11         775.0877, and 960.003, F.S.; conforming provisions to
   12         changes made by the act; providing an effective date.
   13  
   14  Be It Enacted by the Legislature of the State of Florida:
   15  
   16         Section 1. Subsection (1) of section 381.004, Florida
   17  Statutes, is reordered and amended, and subsection (2) and
   18  paragraph (d) of subsection (4) of that section are amended to
   19  read:
   20         381.004 HIV testing.—
   21         (1) DEFINITIONS.—As used in this section:
   22         (a) “HIV test” means a test ordered after July 6, 1988, to
   23  determine the presence of the antibody or antigen to human
   24  immunodeficiency virus or the presence of human immunodeficiency
   25  virus infection.
   26         (b) “HIV test result” means a laboratory report of a human
   27  immunodeficiency virus test result entered into a medical record
   28  on or after July 6, 1988, or any report or notation in a medical
   29  record of a laboratory report of a human immunodeficiency virus
   30  test. As used in this section, the term “HIV test result” does
   31  not include test results reported to a health care provider by a
   32  patient.
   33         (c) “Medical emergency means an emergency medical
   34  situation outside a hospital or health care facility that
   35  provides medical care.
   36         (d) “Medical personnel” means a licensed or certified
   37  health care professional, an employee of a health care
   38  professional or health care facility, an employee of a
   39  laboratory licensed under chapter 483, an employee of a blood
   40  bank or plasma center, a medical student or other student who is
   41  receiving training as a health care professional at a health
   42  care facility, and a paramedic or emergency medical technician
   43  certified by the department to perform basic life support
   44  services as defined in s. 401.23.
   45         (f)(c) “Significant exposure” means:
   46         1. Exposure to blood or body fluids through needlestick,
   47  instruments, or sharps;
   48         2. Exposure of mucous membranes to visible blood or body
   49  fluids, to which universal precautions apply according to the
   50  National Centers for Disease Control and Prevention, including,
   51  without limitations, the following body fluids:
   52         a. Blood.
   53         b. Semen.
   54         c. Vaginal secretions.
   55         d. Cerebro-spinal fluid (CSF).
   56         e. Synovial fluid.
   57         f. Pleural fluid.
   58         g. Peritoneal fluid.
   59         h. Pericardial fluid.
   60         i. Amniotic fluid.
   61         j. Laboratory specimens that contain HIV (e.g., suspensions
   62  of concentrated virus); or
   63         3. Exposure of skin to visible blood or body fluids,
   64  especially when the exposed skin is chapped, abraded, or
   65  afflicted with dermatitis or the contact is prolonged or
   66  involving an extensive area.
   67         (e)(d) “Preliminary HIV test” means an antibody screening
   68  test, such as the enzyme-linked immunosorbent assays (ELISAs) or
   69  the Single-Use Diagnostic System (SUDS).
   70         (g)(e) “Test subject” or “subject of the test” means the
   71  person upon whom an HIV test is performed, or the person who has
   72  legal authority to make health care decisions for the test
   73  subject.
   74         (2) HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED CONSENT;
   75  RESULTS; COUNSELING; CONFIDENTIALITY.—
   76         (a) Informed consent to an HIV test No person in this state
   77  shall order a test designed to identify the human
   78  immunodeficiency virus, or its antigen or antibody, must be
   79  obtained from the legal guardian of the individual upon whom the
   80  test is performed or from a person authorized by law if the
   81  individual:
   82         1. Is not competent, is incapacitated, or is otherwise
   83  unable to make an informed judgment; or
   84         2. Has not reached the age of majority, except as provided
   85  in s. 384.30, without first obtaining the informed consent of
   86  the person upon whom the test is being performed, except as
   87  specified in paragraph (h).
   88  
   89  Informed consent must shall be preceded by an explanation of the
   90  right to confidential treatment of information identifying the
   91  subject of the test and the results of the test to the extent
   92  provided by law. Information must shall also be provided on the
   93  fact that a positive HIV test result will be reported to the
   94  county health department with sufficient information to identify
   95  the test subject and on the availability and location of sites
   96  at which anonymous testing is performed. As required in
   97  paragraph (3)(c), each county health department shall maintain a
   98  list of sites at which anonymous testing is performed, including
   99  the locations, phone numbers, and hours of operation of the
  100  sites. Consent need not be in writing if provided there is
  101  documentation in the medical record that the test has been
  102  explained and the consent has been obtained.
  103         (b) Except as provided in paragraph (h), Informed consent
  104  must be obtained from a legal guardian or other person
  105  authorized by law when the person:
  106         1. Is not competent, is incapacitated, or is otherwise
  107  unable to make an informed judgment; or
  108         2. Has not reached the age of majority, except as provided
  109  in s. 384.30.
  110         (b)(c) The person ordering the HIV test or that person’s
  111  designee shall ensure that all reasonable efforts are made to
  112  notify the test subject of his or her test result. Notification
  113  of a person who has with a positive test result must shall
  114  include information on the availability of appropriate medical
  115  and support services, on the importance of notifying partners
  116  who may have been exposed, and on preventing transmission of
  117  HIV. Notification of a person who has with a negative test
  118  result must shall include, as appropriate, information on
  119  preventing the transmission of HIV. If When testing occurs in a
  120  hospital emergency department, detention facility, or other
  121  facility and the test subject has been released before being
  122  notified of positive test results, informing the county health
  123  department for that department to notify the test subject
  124  fulfills this responsibility.
  125         (c)(d) A positive preliminary test result may not be
  126  revealed to any person except in the following situations:
  127         1. Preliminary test results may be released to licensed
  128  physicians or the medical or nonmedical personnel subject to the
  129  significant exposure for the following purposes: of
  130  subparagraphs (h)10., 11., and 12.
  131         a. For the performance of an HIV test upon an individual
  132  who comes into contact with medical personnel in such a way that
  133  a significant exposure has occurred during the course of
  134  employment or within the scope of practice and where a blood
  135  sample is available that was taken from that individual
  136  voluntarily by medical personnel for other purposes.
  137         (I) Prior to performance of an HIV test on a voluntarily
  138  obtained blood sample, the individual from whom the blood was
  139  obtained shall be requested to consent to the performance of the
  140  test and to the release of the results. If consent cannot be
  141  obtained within the time necessary to perform the HIV test and
  142  begin prophylactic treatment of the exposed medical personnel,
  143  all information concerning the performance of an HIV test and
  144  any HIV test result shall be documented only in the medical
  145  personnel’s record unless the individual gives written consent
  146  to entering this information on the individual’s medical record.
  147         (II) Reasonable attempts to locate the individual and to
  148  obtain consent shall be made, and all attempts must be
  149  documented. If the individual cannot be found or is incapable of
  150  providing consent, an HIV test may be conducted on the available
  151  blood sample. If the individual does not voluntarily consent to
  152  the performance of an HIV test, the individual shall be informed
  153  that an HIV test will be performed, and counseling shall be
  154  furnished as provided in this section. However, HIV testing
  155  shall be conducted only after appropriate medical personnel,
  156  under the supervision of a licensed physician, documents, in the
  157  medical record of the medical personnel, that there has been a
  158  significant exposure and that, in accordance with the written
  159  protocols based on the National Centers for Disease Control and
  160  Prevention guidelines on HIV postexposure prophylaxis and in the
  161  physician’s medical judgment, the information is medically
  162  necessary to determine the course of treatment for the medical
  163  personnel.
  164         (III) Costs of any HIV test of a blood sample performed
  165  with or without the consent of the individual, as provided in
  166  this subparagraph, shall be borne by the medical personnel or
  167  the employer of the medical personnel. However, costs of testing
  168  or treatment not directly related to the initial HIV tests or
  169  costs of subsequent testing or treatment may not be borne by the
  170  medical personnel or the employer of the medical personnel.
  171         (IV) In order to use the provisions of this sub
  172  subparagraph, the medical personnel must either be tested for
  173  HIV pursuant to this section or provide the results of an HIV
  174  test taken within 6 months prior to the significant exposure if
  175  such test results are negative.
  176         (V) A person who receives the results of an HIV test
  177  pursuant to this subparagraph shall maintain the confidentiality
  178  of the information received and of the person tested. Such
  179  confidential information is exempt from s. 119.07(1).
  180         (VI) If the source of the exposure will not voluntarily
  181  submit to HIV testing and a blood sample is not available, the
  182  medical personnel or the employer of such person acting on
  183  behalf of the employee may seek a court order directing the
  184  source of the exposure to submit to HIV testing. A sworn
  185  statement by a physician licensed under chapter 458 or chapter
  186  459 that a significant exposure has occurred and that, in the
  187  physician’s medical judgment, testing is medically necessary to
  188  determine the course of treatment constitutes probable cause for
  189  the issuance of an order by the court. The results of the test
  190  shall be released to the source of the exposure and to the
  191  person who experienced the exposure.
  192         b. For the performance of an HIV test upon an individual
  193  who comes into contact with medical personnel in such a way that
  194  a significant exposure has occurred during the course of
  195  employment or within the scope of practice of the medical
  196  personnel while the medical personnel provides emergency medical
  197  treatment to the individual; or notwithstanding s. 384.287, an
  198  individual who comes into contact with nonmedical personnel in
  199  such a way that a significant exposure has occurred while the
  200  nonmedical personnel provides emergency medical assistance
  201  during a medical emergency. For the purposes of this
  202  subparagraph, a medical emergency means an emergency medical
  203  condition outside of a hospital or health care facility that
  204  provides physician care. The test may be performed only during
  205  the course of treatment for the medical emergency.
  206         (I) An individual who is capable of providing consent shall
  207  be requested to consent to an HIV test prior to the testing. If
  208  consent cannot be obtained within the time necessary to perform
  209  the HIV test and begin prophylactic treatment of the exposed
  210  medical personnel and nonmedical personnel, all information
  211  concerning the performance of an HIV test and its result shall
  212  be documented only in the medical personnel’s or nonmedical
  213  personnel’s record unless the individual gives written consent
  214  to entering this information on the individual’s medical record.
  215         (II) HIV testing shall be conducted only after appropriate
  216  medical personnel, under the supervision of a licensed
  217  physician, documents, in the medical record of the medical
  218  personnel or nonmedical personnel, that there has been a
  219  significant exposure and that, in accordance with the written
  220  protocols based on the National Centers for Disease Control and
  221  Prevention guidelines on HIV postexposure prophylaxis and in the
  222  physician’s medical judgment, the information is medically
  223  necessary to determine the course of treatment for the medical
  224  personnel or nonmedical personnel.
  225         (III) Costs of any HIV test performed with or without the
  226  consent of the individual, as provided in this subparagraph,
  227  shall be borne by the medical personnel or the employer of the
  228  medical personnel or nonmedical personnel. However, costs of
  229  testing or treatment not directly related to the initial HIV
  230  tests or costs of subsequent testing or treatment may not be
  231  borne by the medical personnel or the employer of the medical
  232  personnel or nonmedical personnel.
  233         (IV) In order to use the provisions of this subparagraph,
  234  the medical personnel or nonmedical personnel shall be tested
  235  for HIV pursuant to this section or shall provide the results of
  236  an HIV test taken within 6 months prior to the significant
  237  exposure if such test results are negative.
  238         (V) A person who receives the results of an HIV test
  239  pursuant to this sub-subparagraph shall maintain the
  240  confidentiality of the information received and of the person
  241  tested. Such confidential information is exempt from s.
  242  119.07(1).
  243         (VI) If the source of the exposure will not voluntarily
  244  submit to HIV testing and a blood sample was not obtained during
  245  treatment for the medical emergency, the medical personnel, the
  246  employer of the medical personnel acting on behalf of the
  247  employee, or the nonmedical personnel may seek a court order
  248  directing the source of the exposure to submit to HIV testing. A
  249  sworn statement by a physician licensed under chapter 458 or
  250  chapter 459 that a significant exposure has occurred and that,
  251  in the physician’s medical judgment, testing is medically
  252  necessary to determine the course of treatment constitutes
  253  probable cause for the issuance of an order by the court. The
  254  results of the test shall be released to the source of the
  255  exposure and to the person who experienced the exposure.
  256         c. For the performance of an HIV test by the medical
  257  examiner or attending physician upon an individual who expired
  258  or could not be resuscitated while receiving emergency medical
  259  assistance or care and who was the source of a significant
  260  exposure to medical or nonmedical personnel providing such
  261  assistance or care.
  262         (I) HIV testing may be conducted only after appropriate
  263  medical personnel under the supervision of a licensed physician
  264  documents in the medical record of the medical personnel or
  265  nonmedical personnel that there has been a significant exposure
  266  and that, in accordance with the written protocols based on the
  267  National Centers for Disease Control and Prevention guidelines
  268  on HIV postexposure prophylaxis and in the physician’s medical
  269  judgment, the information is medically necessary to determine
  270  the course of treatment for the medical personnel or nonmedical
  271  personnel.
  272         (II) Costs of any HIV test performed under this sub
  273  subparagraph may not be charged to the deceased or to the family
  274  of the deceased person.
  275         (III) For this sub-subparagraph to be applicable, the
  276  medical personnel or nonmedical personnel must be tested for HIV
  277  under this section or must provide the results of an HIV test
  278  taken within 6 months before the significant exposure if such
  279  test results are negative.
  280         (IV) A person who receives the results of an HIV test
  281  pursuant to this sub-subparagraph shall comply with paragraph
  282  (d).
  283         2. Preliminary test results may be released to health care
  284  providers and to the person tested when decisions about medical
  285  care or treatment of, or recommendation to, the person tested
  286  and, in the case of an intrapartum or postpartum woman, when
  287  care, treatment, or recommendations regarding her newborn,
  288  cannot await the results of confirmatory testing. Positive
  289  preliminary HIV test results may not be characterized to the
  290  patient as a diagnosis of HIV infection. Justification for the
  291  use of preliminary test results must be documented in the
  292  medical record by the health care provider who ordered the test.
  293         3. The results of rapid testing technologies shall be
  294  considered preliminary and may be released in accordance with
  295  the manufacturer’s instructions as approved by the federal Food
  296  and Drug Administration.
  297         4. Corroborating or confirmatory testing must be conducted
  298  as followup to a positive preliminary test. Results shall be
  299  communicated to the patient according to statute regardless of
  300  the outcome. Except as provided in this section, test results
  301  are confidential and exempt from the provisions of s. 119.07(1).
  302         (d)(e) Except as provided in this section, the identity of
  303  any person upon whom a test has been performed and test results
  304  are confidential and exempt from the provisions of s. 119.07(1).
  305  A No person who has obtained or has knowledge of a test result
  306  pursuant to this section may not disclose or be compelled to
  307  disclose the identity of any person upon whom a test is
  308  performed, or the results of such a test in a manner which
  309  permits identification of the subject of the test, except to the
  310  following persons:
  311         1. The subject of the test or the subject’s legally
  312  authorized representative.
  313         2. Any person, including third-party payors, designated in
  314  a legally effective release of the test results executed before
  315  prior to or after the test by the subject of the test or the
  316  subject’s legally authorized representative. The test subject
  317  may in writing authorize the disclosure of the test subject’s
  318  HIV test results to third party payors, who need not be
  319  specifically identified, and to other persons to whom the test
  320  subject subsequently issues a general release of medical
  321  information. A general release without such prior written
  322  authorization is not sufficient to release HIV test results.
  323         3. An authorized agent or employee of a health facility or
  324  health care provider if the health facility or health care
  325  provider itself is authorized to obtain the test results, the
  326  agent or employee participates in the administration or
  327  provision of patient care or handles or processes specimens of
  328  body fluids or tissues, and the agent or employee has a need to
  329  know such information. The department shall adopt a rule
  330  defining which persons have a need to know pursuant to this
  331  subparagraph.
  332         4. Health care providers consulting between themselves or
  333  with health care facilities to determine diagnosis and
  334  treatment. For purposes of this subparagraph, health care
  335  providers shall include licensed health care professionals
  336  employed by or associated with state, county, or municipal
  337  detention facilities when such health care professionals are
  338  acting exclusively for the purpose of providing diagnoses or
  339  treatment of persons in the custody of such facilities.
  340         5. The department, in accordance with rules for reporting
  341  and controlling the spread of disease, as otherwise provided by
  342  state law.
  343         6. A health facility or health care provider which
  344  procures, processes, distributes, or uses:
  345         a. A human body part from a deceased person, with respect
  346  to medical information regarding that person; or
  347         b. Semen provided before prior to July 6, 1988, for the
  348  purpose of artificial insemination.
  349         7. Health facility staff committees, for the purposes of
  350  conducting program monitoring, program evaluation, or service
  351  reviews pursuant to chapters 395 and 766.
  352         8. Authorized medical or epidemiological researchers who
  353  may not further disclose any identifying characteristics or
  354  information.
  355         9. A person allowed access by a court order which is issued
  356  in compliance with the following provisions:
  357         a. A No court of this state may not shall issue such order
  358  unless the court finds that the person seeking the test results
  359  has demonstrated a compelling need for the test results which
  360  cannot be accommodated by other means. In assessing compelling
  361  need, the court shall weigh the need for disclosure against the
  362  privacy interest of the test subject and the public interest
  363  which may be disserved by disclosure which deters blood, organ,
  364  and semen donation and future human immunodeficiency virus
  365  related testing or which may lead to discrimination. This
  366  paragraph does shall not apply to blood bank donor records.
  367         b. Pleadings pertaining to disclosure of test results shall
  368  substitute a pseudonym for the true name of the subject of the
  369  test. The disclosure to the parties of the subject’s true name
  370  shall be communicated confidentially in documents not filed with
  371  the court.
  372         c. Before granting any such order, the court shall provide
  373  the individual whose test result is in question with notice and
  374  a reasonable opportunity to participate in the proceedings if he
  375  or she is not already a party.
  376         d. Court proceedings as to disclosure of test results shall
  377  be conducted in camera, unless the subject of the test agrees to
  378  a hearing in open court or unless the court determines that a
  379  public hearing is necessary to the public interest and the
  380  proper administration of justice.
  381         e. Upon the issuance of an order to disclose test results,
  382  the court shall impose appropriate safeguards against
  383  unauthorized disclosure which shall specify the persons who may
  384  have access to the information, the purposes for which the
  385  information shall be used, and appropriate prohibitions on
  386  future disclosure.
  387         10. A person allowed access by order of a judge of
  388  compensation claims of the Division of Administrative Hearings.
  389  A judge of compensation claims may shall not issue such order
  390  unless he or she finds that the person seeking the test results
  391  has demonstrated a compelling need for the test results which
  392  cannot be accommodated by other means.
  393         11. Those employees of the department or of child-placing
  394  or child-caring agencies or of family foster homes, licensed
  395  pursuant to s. 409.175, who are directly involved in the
  396  placement, care, control, or custody of such test subject and
  397  who have a need to know such information; adoptive parents of
  398  such test subject; or any adult custodian, any adult relative,
  399  or any person responsible for the child’s welfare, if the test
  400  subject was not tested under subparagraph (b)2. and if a
  401  reasonable attempt has been made to locate and inform the legal
  402  guardian of a test result. The department shall adopt a rule to
  403  implement this subparagraph.
  404         12. Those employees of residential facilities or of
  405  community-based care programs that care for developmentally
  406  disabled persons, pursuant to chapter 393, who are directly
  407  involved in the care, control, or custody of such test subject
  408  and who have a need to know such information.
  409         13. A health care provider involved in the delivery of a
  410  child can note the mother’s HIV test results in the child’s
  411  medical record.
  412         14. Medical personnel or nonmedical personnel who have been
  413  subject to a significant exposure during the course of medical
  414  practice or in the performance of professional duties, or
  415  individuals who are the subject of the significant exposure as
  416  provided in sub-subparagraphs (c)1.a.-c subparagraphs (h)10.-12.
  417         15. The medical examiner shall disclose positive HIV test
  418  results to the department in accordance with rules for reporting
  419  and controlling the spread of disease.
  420         (e)(f) Except as provided in this section, the identity of
  421  a person upon whom a test has been performed is confidential and
  422  exempt from the provisions of s. 119.07(1). A No person to whom
  423  the results of a test have been disclosed may not disclose the
  424  test results to another person except as authorized by this
  425  subsection and by ss. 951.27 and 960.003. Whenever disclosure is
  426  made pursuant to this subsection, it must shall be accompanied
  427  by a statement in writing which includes the following or
  428  substantially similar language: “This information has been
  429  disclosed to you from records whose confidentiality is protected
  430  by state law. State law prohibits you from making any further
  431  disclosure of such information without the specific written
  432  consent of the person to whom such information pertains, or as
  433  otherwise permitted by state law. A general authorization for
  434  the release of medical or other information is NOT sufficient
  435  for this purpose.” An oral disclosure shall be accompanied by
  436  oral notice and followed by a written notice within 10 days,
  437  except that this notice may shall not be required for
  438  disclosures made pursuant to subparagraphs (d)3. subparagraphs
  439  (e)3. and 4.
  440         (f)(g) Human immunodeficiency virus test results contained
  441  in the medical records of a hospital licensed under chapter 395
  442  may be released in accordance with s. 395.3025 without being
  443  subject to the requirements of subparagraph (d)2., subparagraph
  444  (d)9., or paragraph (e) subparagraph (e)2., subparagraph (e)9.,
  445  or paragraph (f); provided the hospital has obtained written
  446  informed consent for the HIV test in accordance with provisions
  447  of this section.
  448         (h) Notwithstanding the provisions of paragraph (a),
  449  informed consent is not required:
  450         1. When testing for sexually transmissible diseases is
  451  required by state or federal law, or by rule including the
  452  following situations:
  453         a. HIV testing pursuant to s. 796.08 of persons convicted
  454  of prostitution or of procuring another to commit prostitution.
  455         b. HIV testing of inmates pursuant to s. 945.355 prior to
  456  their release from prison by reason of parole, accumulation of
  457  gain-time credits, or expiration of sentence.
  458         c. Testing for HIV by a medical examiner in accordance with
  459  s. 406.11.
  460         d. HIV testing of pregnant women pursuant to s. 384.31.
  461         2. Those exceptions provided for blood, plasma, organs,
  462  skin, semen, or other human tissue pursuant to s. 381.0041.
  463         3. For the performance of an HIV-related test by licensed
  464  medical personnel in bona fide medical emergencies when the test
  465  results are necessary for medical diagnostic purposes to provide
  466  appropriate emergency care or treatment to the person being
  467  tested and the patient is unable to consent, as supported by
  468  documentation in the medical record. Notification of test
  469  results in accordance with paragraph (c) is required.
  470         4. For the performance of an HIV-related test by licensed
  471  medical personnel for medical diagnosis of acute illness where,
  472  in the opinion of the attending physician, obtaining informed
  473  consent would be detrimental to the patient, as supported by
  474  documentation in the medical record, and the test results are
  475  necessary for medical diagnostic purposes to provide appropriate
  476  care or treatment to the person being tested. Notification of
  477  test results in accordance with paragraph (c) is required if it
  478  would not be detrimental to the patient. This subparagraph does
  479  not authorize the routine testing of patients for HIV infection
  480  without informed consent.
  481         5. When HIV testing is performed as part of an autopsy for
  482  which consent was obtained pursuant to s. 872.04.
  483         6. For the performance of an HIV test upon a defendant
  484  pursuant to the victim’s request in a prosecution for any type
  485  of sexual battery where a blood sample is taken from the
  486  defendant voluntarily, pursuant to court order for any purpose,
  487  or pursuant to the provisions of s. 775.0877, s. 951.27, or s.
  488  960.003; however, the results of any HIV test performed shall be
  489  disclosed solely to the victim and the defendant, except as
  490  provided in ss. 775.0877, 951.27, and 960.003.
  491         7. When an HIV test is mandated by court order.
  492         8. For epidemiological research pursuant to s. 381.0032,
  493  for research consistent with institutional review boards created
  494  by 45 C.F.R. part 46, or for the performance of an HIV-related
  495  test for the purpose of research, if the testing is performed in
  496  a manner by which the identity of the test subject is not known
  497  and may not be retrieved by the researcher.
  498         9. When human tissue is collected lawfully without the
  499  consent of the donor for corneal removal as authorized by s.
  500  765.5185 or enucleation of the eyes as authorized by s. 765.519.
  501         10. For the performance of an HIV test upon an individual
  502  who comes into contact with medical personnel in such a way that
  503  a significant exposure has occurred during the course of
  504  employment or within the scope of practice and where a blood
  505  sample is available that was taken from that individual
  506  voluntarily by medical personnel for other purposes. The term
  507  “medical personnel” includes a licensed or certified health care
  508  professional; an employee of a health care professional or
  509  health care facility; employees of a laboratory licensed under
  510  chapter 483; personnel of a blood bank or plasma center; a
  511  medical student or other student who is receiving training as a
  512  health care professional at a health care facility; and a
  513  paramedic or emergency medical technician certified by the
  514  department to perform life-support procedures under s. 401.23.
  515         a. Prior to performance of an HIV test on a voluntarily
  516  obtained blood sample, the individual from whom the blood was
  517  obtained shall be requested to consent to the performance of the
  518  test and to the release of the results. If consent cannot be
  519  obtained within the time necessary to perform the HIV test and
  520  begin prophylactic treatment of the exposed medical personnel,
  521  all information concerning the performance of an HIV test and
  522  any HIV test result shall be documented only in the medical
  523  personnel’s record unless the individual gives written consent
  524  to entering this information on the individual’s medical record.
  525         b. Reasonable attempts to locate the individual and to
  526  obtain consent shall be made, and all attempts must be
  527  documented. If the individual cannot be found or is incapable of
  528  providing consent, an HIV test may be conducted on the available
  529  blood sample. If the individual does not voluntarily consent to
  530  the performance of an HIV test, the individual shall be informed
  531  that an HIV test will be performed, and counseling shall be
  532  furnished as provided in this section. However, HIV testing
  533  shall be conducted only after appropriate medical personnel
  534  under the supervision of a licensed physician documents, in the
  535  medical record of the medical personnel, that there has been a
  536  significant exposure and that, in accordance with the written
  537  protocols based on the National Centers for Disease Control and
  538  Prevention guidelines on HIV postexposure prophylaxis and in the
  539  physician’s medical judgment, the information is medically
  540  necessary to determine the course of treatment for the medical
  541  personnel.
  542         c. Costs of any HIV test of a blood sample performed with
  543  or without the consent of the individual, as provided in this
  544  subparagraph, shall be borne by the medical personnel or the
  545  employer of the medical personnel. However, costs of testing or
  546  treatment not directly related to the initial HIV tests or costs
  547  of subsequent testing or treatment may not be borne by the
  548  medical personnel or the employer of the medical personnel.
  549         d. In order to utilize the provisions of this subparagraph,
  550  the medical personnel must either be tested for HIV pursuant to
  551  this section or provide the results of an HIV test taken within
  552  6 months prior to the significant exposure if such test results
  553  are negative.
  554         e. A person who receives the results of an HIV test
  555  pursuant to this subparagraph shall maintain the confidentiality
  556  of the information received and of the persons tested. Such
  557  confidential information is exempt from s. 119.07(1).
  558         f. If the source of the exposure will not voluntarily
  559  submit to HIV testing and a blood sample is not available, the
  560  medical personnel or the employer of such person acting on
  561  behalf of the employee may seek a court order directing the
  562  source of the exposure to submit to HIV testing. A sworn
  563  statement by a physician licensed under chapter 458 or chapter
  564  459 that a significant exposure has occurred and that, in the
  565  physician’s medical judgment, testing is medically necessary to
  566  determine the course of treatment constitutes probable cause for
  567  the issuance of an order by the court. The results of the test
  568  shall be released to the source of the exposure and to the
  569  person who experienced the exposure.
  570         11. For the performance of an HIV test upon an individual
  571  who comes into contact with medical personnel in such a way that
  572  a significant exposure has occurred during the course of
  573  employment or within the scope of practice of the medical
  574  personnel while the medical personnel provides emergency medical
  575  treatment to the individual; or notwithstanding s. 384.287, an
  576  individual who comes into contact with nonmedical personnel in
  577  such a way that a significant exposure has occurred while the
  578  nonmedical personnel provides emergency medical assistance
  579  during a medical emergency. For the purposes of this
  580  subparagraph, a medical emergency means an emergency medical
  581  condition outside of a hospital or health care facility that
  582  provides physician care. The test may be performed only during
  583  the course of treatment for the medical emergency.
  584         a. An individual who is capable of providing consent shall
  585  be requested to consent to an HIV test prior to the testing. If
  586  consent cannot be obtained within the time necessary to perform
  587  the HIV test and begin prophylactic treatment of the exposed
  588  medical personnel and nonmedical personnel, all information
  589  concerning the performance of an HIV test and its result, shall
  590  be documented only in the medical personnel’s or nonmedical
  591  personnel’s record unless the individual gives written consent
  592  to entering this information on the individual’s medical record.
  593         b. HIV testing shall be conducted only after appropriate
  594  medical personnel under the supervision of a licensed physician
  595  documents, in the medical record of the medical personnel or
  596  nonmedical personnel, that there has been a significant exposure
  597  and that, in accordance with the written protocols based on the
  598  National Centers for Disease Control and Prevention guidelines
  599  on HIV postexposure prophylaxis and in the physician’s medical
  600  judgment, the information is medically necessary to determine
  601  the course of treatment for the medical personnel or nonmedical
  602  personnel.
  603         c. Costs of any HIV test performed with or without the
  604  consent of the individual, as provided in this subparagraph,
  605  shall be borne by the medical personnel or the employer of the
  606  medical personnel or nonmedical personnel. However, costs of
  607  testing or treatment not directly related to the initial HIV
  608  tests or costs of subsequent testing or treatment may not be
  609  borne by the medical personnel or the employer of the medical
  610  personnel or nonmedical personnel.
  611         d. In order to utilize the provisions of this subparagraph,
  612  the medical personnel or nonmedical personnel shall be tested
  613  for HIV pursuant to this section or shall provide the results of
  614  an HIV test taken within 6 months prior to the significant
  615  exposure if such test results are negative.
  616         e. A person who receives the results of an HIV test
  617  pursuant to this subparagraph shall maintain the confidentiality
  618  of the information received and of the persons tested. Such
  619  confidential information is exempt from s. 119.07(1).
  620         f. If the source of the exposure will not voluntarily
  621  submit to HIV testing and a blood sample was not obtained during
  622  treatment for the medical emergency, the medical personnel, the
  623  employer of the medical personnel acting on behalf of the
  624  employee, or the nonmedical personnel may seek a court order
  625  directing the source of the exposure to submit to HIV testing. A
  626  sworn statement by a physician licensed under chapter 458 or
  627  chapter 459 that a significant exposure has occurred and that,
  628  in the physician’s medical judgment, testing is medically
  629  necessary to determine the course of treatment constitutes
  630  probable cause for the issuance of an order by the court. The
  631  results of the test shall be released to the source of the
  632  exposure and to the person who experienced the exposure.
  633         12. For the performance of an HIV test by the medical
  634  examiner or attending physician upon an individual who expired
  635  or could not be resuscitated while receiving emergency medical
  636  assistance or care and who was the source of a significant
  637  exposure to medical or nonmedical personnel providing such
  638  assistance or care.
  639         a. HIV testing may be conducted only after appropriate
  640  medical personnel under the supervision of a licensed physician
  641  documents in the medical record of the medical personnel or
  642  nonmedical personnel that there has been a significant exposure
  643  and that, in accordance with the written protocols based on the
  644  National Centers for Disease Control and Prevention guidelines
  645  on HIV postexposure prophylaxis and in the physician’s medical
  646  judgment, the information is medically necessary to determine
  647  the course of treatment for the medical personnel or nonmedical
  648  personnel.
  649         b. Costs of any HIV test performed under this subparagraph
  650  may not be charged to the deceased or to the family of the
  651  deceased person.
  652         c. For the provisions of this subparagraph to be
  653  applicable, the medical personnel or nonmedical personnel must
  654  be tested for HIV under this section or must provide the results
  655  of an HIV test taken within 6 months before the significant
  656  exposure if such test results are negative.
  657         d. A person who receives the results of an HIV test
  658  pursuant to this subparagraph shall comply with paragraph (e).
  659         13. For the performance of an HIV-related test medically
  660  indicated by licensed medical personnel for medical diagnosis of
  661  a hospitalized infant as necessary to provide appropriate care
  662  and treatment of the infant when, after a reasonable attempt, a
  663  parent cannot be contacted to provide consent. The medical
  664  records of the infant shall reflect the reason consent of the
  665  parent was not initially obtained. Test results shall be
  666  provided to the parent when the parent is located.
  667         14. For the performance of HIV testing conducted to monitor
  668  the clinical progress of a patient previously diagnosed to be
  669  HIV positive.
  670         15. For the performance of repeated HIV testing conducted
  671  to monitor possible conversion from a significant exposure.
  672         (4) HUMAN IMMUNODEFICIENCY VIRUS TESTING REQUIREMENTS;
  673  REGISTRATION WITH THE DEPARTMENT OF HEALTH; EXEMPTIONS FROM
  674  REGISTRATION.—No county health department and no other person in
  675  this state shall conduct or hold themselves out to the public as
  676  conducting a testing program for acquired immune deficiency
  677  syndrome or human immunodeficiency virus status without first
  678  registering with the Department of Health, reregistering each
  679  year, complying with all other applicable provisions of state
  680  law, and meeting the following requirements:
  681         (d) The program must meet all the informed consent criteria
  682  contained in paragraph (2)(a), if applicable subsection (2).
  683         Section 2. Subsection (1) of section 381.0041, Florida
  684  Statutes, is amended to read:
  685         381.0041 Donation and transfer of human tissue; testing
  686  requirements.—
  687         (1) Every donation of blood, plasma, organs, skin, or other
  688  human tissue for transfusion or transplantation to another shall
  689  be tested before prior to transfusion or other use for human
  690  immunodeficiency virus infection and other communicable diseases
  691  specified by rule of the Department of Health. Tests for the
  692  human immunodeficiency virus infection shall be performed only
  693  after obtaining written, informed consent from the potential
  694  donor or the donor’s legal representative. Such consent may be
  695  given by a minor pursuant to s. 743.06. Obtaining consent shall
  696  include a fair explanation of the procedures to be followed and
  697  the meaning and use of the test results. Such explanation shall
  698  include a description of the confidential nature of the test as
  699  described in s. 381.004(2). If consent for testing is not given,
  700  then the person shall not be accepted as a donor except as
  701  otherwise provided in subsection (3).
  702         Section 3. Subsection (2) of section 456.032, Florida
  703  Statutes, is amended to read:
  704         456.032 Hepatitis B or HIV carriers.—
  705         (2) Any person licensed by the department and any other
  706  person employed by a health care facility who contracts a blood
  707  borne infection shall have a rebuttable presumption that the
  708  illness was contracted in the course and scope of his or her
  709  employment, provided that the person, as soon as practicable,
  710  reports to the person’s supervisor or the facility’s risk
  711  manager any significant exposure, as that term is defined in s.
  712  381.004 s. 381.004(1)(c), to blood or body fluids. The employer
  713  may test the blood or body fluid to determine if it is infected
  714  with the same disease contracted by the employee. The employer
  715  may rebut the presumption by the preponderance of the evidence.
  716  Except as expressly provided in this subsection, there shall be
  717  no presumption that a blood-borne infection is a job-related
  718  injury or illness.
  719         Section 4. Paragraph (b) of subsection (4) of section
  720  627.429, Florida Statutes, is amended to read:
  721         627.429 Medical tests for HIV infection and AIDS for
  722  insurance purposes.—
  723         (4) USE OF MEDICAL TESTS FOR UNDERWRITING.—
  724         (b) Before Prior to testing, the insurer must shall
  725  disclose its intent to test the person for the HIV infection or
  726  for a specific sickness or medical condition derived therefrom
  727  and shall obtain the person’s written informed consent to
  728  administer the test. The written informed consent required by
  729  this paragraph shall include a fair explanation of the test,
  730  including its purpose, potential uses, and limitations, and the
  731  meaning of its results and the right to confidential treatment
  732  of information. Use of a form approved by the office raises a
  733  conclusive presumption of informed consent.
  734         Section 5. Paragraph (b) of subsection (4) of section
  735  641.3007, Florida Statutes, is amended to read:
  736         641.3007 HIV infection and AIDS for contract purposes.—
  737         (4) UTILIZATION OF MEDICAL TESTS.—
  738         (b) Before Prior to testing, the health maintenance
  739  organization must disclose its intent to test the person for the
  740  HIV infection or for a specific sickness or medical condition
  741  derived therefrom and must obtain the person’s written informed
  742  consent to administer the test. Written informed consent shall
  743  include a fair explanation of the test, including its purpose,
  744  potential uses, and limitations, and the meaning of its results
  745  and the right to confidential treatment of information. Use of a
  746  form approved by the office shall raise a conclusive presumption
  747  of informed consent.
  748         Section 6. Subsection (1) of section 775.0877, Florida
  749  Statutes, is amended to read:
  750         775.0877 Criminal transmission of HIV; procedures;
  751  penalties.—
  752         (1) In any case in which a person has been convicted of or
  753  has pled nolo contendere or guilty to, regardless of whether
  754  adjudication is withheld, any of the following offenses, or the
  755  attempt thereof, which offense or attempted offense involves the
  756  transmission of body fluids from one person to another:
  757         (a) Section 794.011, relating to sexual battery;
  758         (b) Section 826.04, relating to incest;
  759         (c) Section 800.04, relating to lewd or lascivious offenses
  760  committed upon or in the presence of persons less than 16 years
  761  of age;
  762         (d) Sections 784.011, 784.07(2)(a), and 784.08(2)(d),
  763  relating to assault;
  764         (e) Sections 784.021, 784.07(2)(c), and 784.08(2)(b),
  765  relating to aggravated assault;
  766         (f) Sections 784.03, 784.07(2)(b), and 784.08(2)(c),
  767  relating to battery;
  768         (g) Sections 784.045, 784.07(2)(d), and 784.08(2)(a),
  769  relating to aggravated battery;
  770         (h) Section 827.03(2)(c), relating to child abuse;
  771         (i) Section 827.03(2)(a), relating to aggravated child
  772  abuse;
  773         (j) Section 825.102(1), relating to abuse of an elderly
  774  person or disabled adult;
  775         (k) Section 825.102(2), relating to aggravated abuse of an
  776  elderly person or disabled adult;
  777         (l) Section 827.071, relating to sexual performance by
  778  person less than 18 years of age;
  779         (m) Sections 796.03, 796.07, and 796.08, relating to
  780  prostitution; or
  781         (n) Section 381.0041(11)(b), relating to donation of blood,
  782  plasma, organs, skin, or other human tissue,
  783  
  784  the court shall order the offender to undergo HIV testing, to be
  785  performed under the direction of the Department of Health in
  786  accordance with s. 381.004, unless the offender has undergone
  787  HIV testing voluntarily or pursuant to procedures established in
  788  s. 381.004(2)(h)6. or s. 951.27, or any other applicable law or
  789  rule providing for HIV testing of criminal offenders or inmates,
  790  subsequent to her or his arrest for an offense enumerated in
  791  paragraphs (a)-(n) for which she or he was convicted or to which
  792  she or he pled nolo contendere or guilty. The results of an HIV
  793  test performed on an offender pursuant to this subsection are
  794  not admissible in any criminal proceeding arising out of the
  795  alleged offense.
  796         Section 7. Subsection (5) of section 960.003, Florida
  797  Statutes, is amended to read:
  798         960.003 Hepatitis and HIV testing for persons charged with
  799  or alleged by petition for delinquency to have committed certain
  800  offenses; disclosure of results to victims.—
  801         (5) EXCEPTIONS.—Subsections (2) and (4) do not apply if:
  802         (a) The person charged with or convicted of or alleged by
  803  petition for delinquency to have committed or been adjudicated
  804  delinquent for an offense described in subsection (2) has
  805  undergone hepatitis and HIV testing voluntarily or pursuant to
  806  procedures established in s. 381.004(3)(h)6. or s. 951.27, or
  807  any other applicable law or rule providing for hepatitis and HIV
  808  testing of criminal defendants, inmates, or juvenile offenders,
  809  subsequent to his or her arrest, conviction, or delinquency
  810  adjudication for the offense for which he or she was charged or
  811  alleged by petition for delinquency to have committed; and
  812         (b) The results of such hepatitis and HIV testing have been
  813  furnished to the victim or the victim’s legal guardian, or the
  814  parent or legal guardian of the victim if the victim is a minor.
  815         Section 8. This act shall take effect July 1, 2013.