Florida Senate - 2015                                     SB 512
       
       
        
       By Senator Thompson
       
       
       
       
       
       12-00343-15                                            2015512__
    1                        A bill to be entitled                      
    2         An act relating to HIV testing; amending s. 381.004,
    3         F.S.; defining and redefining terms; differentiating
    4         between the notification and consent procedures for
    5         performing an HIV test in a health care setting and a
    6         non-health care setting; amending s. 456.032, F.S.;
    7         conforming a cross-reference; reenacting s.
    8         483.314(4), F.S., relating to the collection and
    9         transmittal of specimens, to incorporate the amendment
   10         made to s. 381.004, F.S., in a reference thereto;
   11         providing an effective date.
   12          
   13  Be It Enacted by the Legislature of the State of Florida:
   14  
   15         Section 1. Subsection (1) of section 381.004, Florida
   16  Statutes, is reordered and amended, and paragraphs (a), (b),
   17  (g), and (h) of subsection (2) and paragraph (d) of subsection
   18  (4) of that section are amended, to read:
   19         381.004 HIV testing.—
   20         (1) DEFINITIONS.—As used in this section:
   21         (a) “Health care setting” means a setting devoted to both
   22  the diagnosis and care of persons, such as a county health
   23  department clinic, a hospital emergency department, an urgent
   24  care clinic, a substance abuse treatment clinic, a primary care
   25  setting, a community clinic, a mobile medical clinic, and a
   26  correctional health care facility.
   27         (b)(a) “HIV test” means a test ordered after July 6, 1988,
   28  to determine the presence of the antibody or antigen to human
   29  immunodeficiency virus or the presence of human immunodeficiency
   30  virus infection.
   31         (c)(b) “HIV test result” means a laboratory report of a
   32  human immunodeficiency virus test result entered into a medical
   33  record on or after July 6, 1988, or any report or notation in a
   34  medical record of a laboratory report of a human
   35  immunodeficiency virus test. As used in this section, The term
   36  “HIV test result” does not include test results reported to a
   37  health care provider by a patient.
   38         (d) “Non-health care setting” means a site that conducts
   39  HIV testing for the sole purpose of identifying HIV infection.
   40  Such setting does not provide medical treatment but may include
   41  community-based organizations, outreach settings, county health
   42  department HIV testing programs, and mobile vans.
   43         (f)(c) “Significant exposure” means:
   44         1. Exposure to blood or body fluids through needlestick,
   45  instruments, or sharps;
   46         2. Exposure of mucous membranes to visible blood or body
   47  fluids, to which universal precautions apply according to the
   48  National Centers for Disease Control and Prevention, including,
   49  without limitations, the following body fluids:
   50         a. Blood.
   51         b. Semen.
   52         c. Vaginal secretions.
   53         d. Cerebrospinal Cerebro-spinal fluid (CSF).
   54         e. Synovial fluid.
   55         f. Pleural fluid.
   56         g. Peritoneal fluid.
   57         h. Pericardial fluid.
   58         i. Amniotic fluid.
   59         j. Laboratory specimens that contain HIV (e.g., suspensions
   60  of concentrated virus); or
   61         3. Exposure of skin to visible blood or body fluids,
   62  especially when the exposed skin is chapped, abraded, or
   63  afflicted with dermatitis or the contact is prolonged or
   64  involving an extensive area.
   65         (e)(d) “Preliminary HIV test” means an antibody or
   66  antibody-antigen screening test, such as the enzyme-linked
   67  immunosorbent assays (IA), or a rapid test approved by the
   68  United States Food and Drug Administration (ELISAs) or the
   69  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) Before performing an HIV test:
   77         1. In a health care setting, the health care provider shall
   78  notify the person to be tested that the HIV test is planned,
   79  provide information about the HIV test, and advise the person
   80  that he or she has the right to decline the HIV test. The health
   81  care provider shall also explain the right to confidential
   82  treatment of information that identifies the test subject and
   83  the test result as provided by law. If a person declines the HIV
   84  test, the health care provider shall note such fact in the
   85  person’s medical record No person in this state shall order a
   86  test designed to identify the human immunodeficiency virus, or
   87  its antigen or antibody, without first obtaining the informed
   88  consent of the person upon whom the test is being performed,
   89  except as specified in paragraph (h). Informed consent shall be
   90  preceded by an explanation of the right to confidential
   91  treatment of information identifying the subject of the test and
   92  the results of the test to the extent provided by law.
   93  Information shall also be provided on the fact that a positive
   94  HIV test result will be reported to the county health department
   95  with sufficient information to identify the test subject and on
   96  the availability and location of sites at which anonymous
   97  testing is performed. As required in paragraph (3)(c), each
   98  county health department shall maintain a list of sites at which
   99  anonymous testing is performed, including the locations, phone
  100  numbers, and hours of operation of the sites. Consent need not
  101  be in writing provided there is documentation in the medical
  102  record that the test has been explained and the consent has been
  103  obtained.
  104         2.In a non-health care setting, a provider shall obtain
  105  the informed consent of the person upon whom the test is being
  106  performed. Informed consent shall be preceded by an explanation
  107  of the right to confidential treatment of information that
  108  identifies the test subject and the test result as provided by
  109  law.
  110  
  111  The test subject shall also be informed that a positive HIV test
  112  result will be reported to the county health department with
  113  sufficient information to identify the test subject and of the
  114  availability and location of sites that perform anonymous
  115  testing. As required in paragraph (3)(c), each county health
  116  department shall maintain a list of anonymous testing sites. The
  117  list must include the locations, telephone numbers, and hours of
  118  operation of the sites.
  119         (b) Except as provided in paragraph (h), informed consent
  120  must be obtained from a legal guardian or other person
  121  authorized by law if when the person:
  122         1. Is not competent, is incapacitated, or is otherwise
  123  unable to make an informed judgment; or
  124         2. Has not reached the age of majority, except as provided
  125  in s. 384.30.
  126         (g) HIV Human immunodeficiency virus test results contained
  127  in the medical records of a hospital licensed under chapter 395
  128  may be released in accordance with s. 395.3025 without being
  129  subject to the requirements of subparagraph (e)2., subparagraph
  130  (e)9., or paragraph (f) if; provided the hospital has notified
  131  the patient of the limited confidentiality protections afforded
  132  HIV test results that are contained in hospital medical records
  133  obtained written informed consent for the HIV test in accordance
  134  with provisions of this section.
  135         (h) Notwithstanding the provisions of paragraph (a),
  136  informed consent is not required:
  137         1. When testing for sexually transmissible diseases is
  138  required by state or federal law, or by rule including the
  139  following situations:
  140         a. HIV testing pursuant to s. 796.08 of persons convicted
  141  of prostitution or of procuring another to commit prostitution.
  142         b. HIV testing of inmates pursuant to s. 945.355 before
  143  prior to their release from prison by reason of parole,
  144  accumulation of gain-time credits, or expiration of sentence.
  145         c. Testing for HIV by a medical examiner in accordance with
  146  s. 406.11.
  147         d. HIV testing of pregnant women pursuant to s. 384.31.
  148         2. Those exceptions provided for blood, plasma, organs,
  149  skin, semen, or other human tissue pursuant to s. 381.0041.
  150         3. For the performance of an HIV-related test by licensed
  151  medical personnel in bona fide medical emergencies if when the
  152  test results are necessary for medical diagnostic purposes to
  153  provide appropriate emergency care or treatment to the person
  154  being tested and the patient is unable to consent, as supported
  155  by documentation in the medical record. Notification of test
  156  results in accordance with paragraph (c) is required.
  157         4. For the performance of an HIV-related test by licensed
  158  medical personnel for medical diagnosis of acute illness if
  159  where, in the opinion of the attending physician, providing
  160  notification obtaining informed consent would be detrimental to
  161  the patient, as supported by documentation in the medical
  162  record, and the test results are necessary for medical
  163  diagnostic purposes to provide appropriate care or treatment to
  164  the person being tested. Notification of test results in
  165  accordance with paragraph (c) is required if it would not be
  166  detrimental to the patient. This subparagraph does not authorize
  167  the routine testing of patients for HIV infection without
  168  notification informed consent.
  169         5. If When HIV testing is performed as part of an autopsy
  170  for which consent was obtained pursuant to s. 872.04.
  171         6. For the performance of an HIV test upon a defendant
  172  pursuant to the victim’s request in a prosecution for any type
  173  of sexual battery if where a blood sample is taken from the
  174  defendant voluntarily, pursuant to court order for any purpose,
  175  or pursuant to the provisions of s. 775.0877, s. 951.27, or s.
  176  960.003; however, the results of an any HIV test performed shall
  177  be disclosed solely to the victim and the defendant, except as
  178  provided in ss. 775.0877, 951.27, and 960.003.
  179         7. If When an HIV test is mandated by court order.
  180         8. For epidemiological research pursuant to s. 381.0031,
  181  for research consistent with institutional review boards created
  182  by 45 C.F.R. part 46, or for the performance of an HIV-related
  183  test for the purpose of research, if the testing is performed in
  184  a manner by which the identity of the test subject is not known
  185  and may not be retrieved by the researcher.
  186         9. If When human tissue is collected lawfully without the
  187  consent of the donor for corneal removal as authorized by s.
  188  765.5185 or enucleation of the eyes as authorized by s. 765.519.
  189         10. For the performance of an HIV test upon an individual
  190  who comes into contact with medical personnel in such a way that
  191  a significant exposure has occurred during the course of
  192  employment or within the scope of practice and where a blood
  193  sample is available which that was taken from that individual
  194  voluntarily by medical personnel for other purposes. The term
  195  “medical personnel” includes a licensed or certified health care
  196  professional; an employee of a health care professional or
  197  health care facility; employees of a laboratory licensed under
  198  chapter 483; personnel of a blood bank or plasma center; a
  199  medical student or other student who is receiving training as a
  200  health care professional at a health care facility; and a
  201  paramedic or emergency medical technician certified by the
  202  department to perform life-support procedures under s. 401.23.
  203         a. Before performing Prior to performance of an HIV test on
  204  a voluntarily obtained blood sample, the individual from whom
  205  the blood was obtained shall be requested to consent to the
  206  performance of the test and to the release of the results. If
  207  consent cannot be obtained within the time necessary to perform
  208  the HIV test and begin prophylactic treatment of the exposed
  209  medical personnel, all information concerning the performance of
  210  an HIV test and any HIV test result shall be documented only in
  211  the medical personnel’s record unless the individual gives
  212  written consent to entering this information on the individual’s
  213  medical record.
  214         b. Reasonable attempts to locate the individual and to
  215  obtain consent shall be made, and all attempts must be
  216  documented. If the individual cannot be found or is incapable of
  217  providing consent, an HIV test may be conducted on the available
  218  blood sample. If the individual does not voluntarily consent to
  219  the performance of an HIV test, the individual shall be informed
  220  that an HIV test will be performed, and counseling shall be
  221  furnished as provided in this section. However, HIV testing
  222  shall be conducted only after appropriate medical personnel
  223  under the supervision of a licensed physician documents, in the
  224  medical record of the medical personnel, that there has been a
  225  significant exposure and that, in accordance with the written
  226  protocols based on the National Centers for Disease Control and
  227  Prevention guidelines on HIV postexposure prophylaxis and in the
  228  physician’s medical judgment, the information is medically
  229  necessary to determine the course of treatment for the medical
  230  personnel.
  231         c. Costs of an any HIV test of a blood sample performed
  232  with or without the consent of the individual, as provided in
  233  this subparagraph, shall be borne by the medical personnel or
  234  the employer of the medical personnel. However, costs of testing
  235  or treatment not directly related to the initial HIV tests or
  236  costs of subsequent testing or treatment may not be borne by the
  237  medical personnel or the employer of the medical personnel.
  238         d. In order to use utilize the provisions of this
  239  subparagraph, the medical personnel must either be tested for
  240  HIV pursuant to this section or provide the results of an HIV
  241  test taken within 6 months before prior to the significant
  242  exposure if such test results are negative.
  243         e. A person who receives the results of an HIV test
  244  pursuant to this subparagraph shall maintain the confidentiality
  245  of the information received and of the persons tested. Such
  246  confidential information is exempt from s. 119.07(1).
  247         f. If the source of the exposure will not voluntarily
  248  submit to HIV testing and a blood sample is not available, the
  249  medical personnel or the employer of such person acting on
  250  behalf of the employee may seek a court order directing the
  251  source of the exposure to submit to HIV testing. A sworn
  252  statement by a physician licensed under chapter 458 or chapter
  253  459 that a significant exposure has occurred and that, in the
  254  physician’s medical judgment, testing is medically necessary to
  255  determine the course of treatment constitutes probable cause for
  256  the issuance of an order by the court. The results of the test
  257  shall be released to the source of the exposure and to the
  258  person who experienced the exposure.
  259         11. For the performance of an HIV test upon an individual
  260  who comes into contact with medical personnel in such a way that
  261  a significant exposure has occurred during the course of
  262  employment or within the scope of practice of the medical
  263  personnel while the medical personnel provides emergency medical
  264  treatment to the individual; or notwithstanding s. 384.287, an
  265  individual who comes into contact with nonmedical personnel in
  266  such a way that a significant exposure has occurred while the
  267  nonmedical personnel provides emergency medical assistance
  268  during a medical emergency. For the purposes of this
  269  subparagraph, a medical emergency means an emergency medical
  270  condition outside of a hospital or health care facility that
  271  provides physician care. The test may be performed only during
  272  the course of treatment for the medical emergency.
  273         a. An individual who is capable of providing consent shall
  274  be requested to consent to an HIV test before prior to the
  275  testing. If consent cannot be obtained within the time necessary
  276  to perform the HIV test and begin prophylactic treatment of the
  277  exposed medical personnel and nonmedical personnel, all
  278  information concerning the performance of an HIV test and its
  279  result, shall be documented only in the medical personnel’s or
  280  nonmedical personnel’s record unless the individual gives
  281  written consent to entering this information in on the
  282  individual’s medical record.
  283         b. HIV testing shall be conducted only after appropriate
  284  medical personnel under the supervision of a licensed physician
  285  documents, in the medical record of the medical personnel or
  286  nonmedical personnel, that there has been a significant exposure
  287  and that, in accordance with the written protocols based on the
  288  National Centers for Disease Control and Prevention guidelines
  289  on HIV postexposure prophylaxis and in the physician’s medical
  290  judgment, the information is medically necessary to determine
  291  the course of treatment for the medical personnel or nonmedical
  292  personnel.
  293         c. Costs of any HIV test performed with or without the
  294  consent of the individual, as provided in this subparagraph,
  295  shall be borne by the medical personnel or the employer of the
  296  medical personnel or nonmedical personnel. However, costs of
  297  testing or treatment not directly related to the initial HIV
  298  tests or costs of subsequent testing or treatment may not be
  299  borne by the medical personnel or the employer of the medical
  300  personnel or nonmedical personnel.
  301         d. In order to use utilize the provisions of this
  302  subparagraph, the medical personnel or nonmedical personnel
  303  shall be tested for HIV pursuant to this section or shall
  304  provide the results of an HIV test taken within 6 months before
  305  prior to the significant exposure if such test results are
  306  negative.
  307         e. A person who receives the results of an HIV test
  308  pursuant to this subparagraph shall maintain the confidentiality
  309  of the information received and of the persons tested. Such
  310  confidential information is exempt from s. 119.07(1).
  311         f. If the source of the exposure will not voluntarily
  312  submit to HIV testing and a blood sample was not obtained during
  313  treatment for the medical emergency, the medical personnel, the
  314  employer of the medical personnel acting on behalf of the
  315  employee, or the nonmedical personnel may seek a court order
  316  directing the source of the exposure to submit to HIV testing. A
  317  sworn statement by a physician licensed under chapter 458 or
  318  chapter 459 that a significant exposure has occurred and that,
  319  in the physician’s medical judgment, testing is medically
  320  necessary to determine the course of treatment constitutes
  321  probable cause for the issuance of an order by the court. The
  322  results of the test shall be released to the source of the
  323  exposure and to the person who experienced the exposure.
  324         12. For the performance of an HIV test by the medical
  325  examiner or attending physician upon an individual who expired
  326  or could not be resuscitated while receiving emergency medical
  327  assistance or care and who was the source of a significant
  328  exposure to medical or nonmedical personnel providing such
  329  assistance or care.
  330         a. HIV testing may be conducted only after appropriate
  331  medical personnel under the supervision of a licensed physician
  332  documents in the medical record of the medical personnel or
  333  nonmedical personnel that there has been a significant exposure
  334  and that, in accordance with the written protocols based on the
  335  National Centers for Disease Control and Prevention guidelines
  336  on HIV postexposure prophylaxis and in the physician’s medical
  337  judgment, the information is medically necessary to determine
  338  the course of treatment for the medical personnel or nonmedical
  339  personnel.
  340         b. Costs of an any HIV test performed under this
  341  subparagraph may not be charged to the deceased or to the family
  342  of the deceased person.
  343         c. For the provisions of this subparagraph to be
  344  applicable, the medical personnel or nonmedical personnel must
  345  be tested for HIV under this section or must provide the results
  346  of an HIV test taken within 6 months before the significant
  347  exposure if such test results are negative.
  348         d. A person who receives the results of an HIV test
  349  pursuant to this subparagraph shall comply with paragraph (e).
  350         13. For the performance of an HIV-related test medically
  351  indicated by licensed medical personnel for medical diagnosis of
  352  a hospitalized infant as necessary to provide appropriate care
  353  and treatment of the infant if when, after a reasonable attempt,
  354  a parent cannot be contacted to provide consent. The medical
  355  records of the infant must shall reflect the reason consent of
  356  the parent was not initially obtained. Test results shall be
  357  provided to the parent when the parent is located.
  358         14. For the performance of HIV testing conducted to monitor
  359  the clinical progress of a patient previously diagnosed to be
  360  HIV positive.
  361         15. For the performance of repeated HIV testing conducted
  362  to monitor possible conversion from a significant exposure.
  363         (4) HUMAN IMMUNODEFICIENCY VIRUS TESTING REQUIREMENTS;
  364  REGISTRATION WITH THE DEPARTMENT OF HEALTH; EXEMPTIONS FROM
  365  REGISTRATION.—No county health department and no other person in
  366  this state shall conduct or hold themselves out to the public as
  367  conducting a testing program for acquired immune deficiency
  368  syndrome or human immunodeficiency virus status without first
  369  registering with the Department of Health, reregistering each
  370  year, complying with all other applicable provisions of state
  371  law, and meeting the following requirements:
  372         (d) A program in a health care setting shall meet the
  373  notification criteria contained in subparagraph (2)(a)1. A
  374  program in a non-health care setting shall meet all informed
  375  consent criteria contained in subparagraph (2)(a)2. The program
  376  must meet all the informed consent criteria contained in
  377  subsection (2).
  378         Section 2. Subsection (2) of section 456.032, Florida
  379  Statutes, is amended to read:
  380         456.032 Hepatitis B or HIV carriers.—
  381         (2) Any person licensed by the department and any other
  382  person employed by a health care facility who contracts a blood
  383  borne infection shall have a rebuttable presumption that the
  384  illness was contracted in the course and scope of his or her
  385  employment, provided that the person, as soon as practicable,
  386  reports to the person’s supervisor or the facility’s risk
  387  manager any significant exposure, as that term is defined in s.
  388  381.004(1)(c), to blood or body fluids. The employer may test
  389  the blood or body fluid to determine if it is infected with the
  390  same disease contracted by the employee. The employer may rebut
  391  the presumption by the preponderance of the evidence. Except as
  392  expressly provided in this subsection, there shall be no
  393  presumption that a blood-borne infection is a job-related injury
  394  or illness.
  395         Section 3. For the purpose of incorporating the amendment
  396  made by this act to section 381.004, Florida Statutes, in a
  397  reference thereto, subsection (4) of section 483.314, Florida
  398  Statutes, is reenacted to read:
  399         483.314 Collection and transmittal of specimens.—
  400         (4) A center may not perform or hold itself out to the
  401  public as providing for testing for the human immunodeficiency
  402  virus (HIV) unless it complies with s. 381.004.
  403         Section 4. This act shall take effect July 1, 2015.