Florida Senate - 2014                             CS for SB 1470
       
       
        
       By the Committee on Health Policy; and Senator Thompson
       
       
       
       
       
       588-03602-14                                          20141470c1
    1                        A bill to be entitled                      
    2         An act relating to HIV testing; amending s. 381.004,
    3         F.S.; revising and adding definitions; differentiating
    4         between the notification and consent procedures for
    5         performing an HIV test in a health care setting and a
    6         nonhealth care setting; amending s. 456.032, F.S.;
    7         conforming a cross-reference; providing an effective
    8         date.
    9          
   10  Be It Enacted by the Legislature of the State of Florida:
   11  
   12         Section 1. Subsection (1), paragraphs (a), (b), (g), and
   13  (h) of subsection (2), and paragraph (d) of subsection (4) of
   14  section 381.004, Florida Statutes, are amended, and subsection
   15  (1) of that section is reordered, to read:
   16         381.004 HIV testing.—
   17         (1) DEFINITIONS.—As used in this section:
   18         (a) “Health care setting” means a setting devoted to both
   19  the diagnosis and care of persons, such as county health
   20  department clinics, hospital emergency departments, urgent care
   21  clinics, substance abuse treatment clinics, primary care
   22  settings, community clinics, mobile medical clinics, and
   23  correctional health care facilities.
   24         (b)(a) “HIV test” means a test ordered after July 6, 1988,
   25  to determine the presence of the antibody or antigen to human
   26  immunodeficiency virus or the presence of human immunodeficiency
   27  virus infection.
   28         (c)(b) “HIV test result” means a laboratory report of a
   29  human immunodeficiency virus test result entered into a medical
   30  record on or after July 6, 1988, or any report or notation in a
   31  medical record of a laboratory report of a human
   32  immunodeficiency virus test. As used in this section, The term
   33  “HIV test result” does not include test results reported to a
   34  health care provider by a patient.
   35         (d) “Nonhealth care setting” means a site that conducts HIV
   36  testing for the sole purpose of identifying HIV infection. Such
   37  setting does not provide medical treatment but may include
   38  community-based organizations, outreach settings, county health
   39  department HIV testing programs, and mobile vans.
   40         (f)(c) “Significant exposure” means:
   41         1. Exposure to blood or body fluids through needlestick,
   42  instruments, or sharps;
   43         2. Exposure of mucous membranes to visible blood or body
   44  fluids, to which universal precautions apply according to the
   45  National Centers for Disease Control and Prevention, including,
   46  without limitations, the following body fluids:
   47         a. Blood.
   48         b. Semen.
   49         c. Vaginal secretions.
   50         d. Cerebrospinal Cerebro-spinal fluid (CSF).
   51         e. Synovial fluid.
   52         f. Pleural fluid.
   53         g. Peritoneal fluid.
   54         h. Pericardial fluid.
   55         i. Amniotic fluid.
   56         j. Laboratory specimens that contain HIV (e.g., suspensions
   57  of concentrated virus); or
   58         3. Exposure of skin to visible blood or body fluids,
   59  especially when the exposed skin is chapped, abraded, or
   60  afflicted with dermatitis or the contact is prolonged or
   61  involving an extensive area.
   62         (e)(d) “Preliminary HIV test” means an antibody or
   63  antibody-antigen screening test, such as the enzyme-linked
   64  immunosorbent assays (IA), or a rapid test approved by the
   65  federal Food and Drug Administration (ELISAs) or the Single-Use
   66  Diagnostic System (SUDS).
   67         (g)(e) “Test subject” or “subject of the test” means the
   68  person upon whom an HIV test is performed, or the person who has
   69  legal authority to make health care decisions for the test
   70  subject.
   71         (2) HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED CONSENT;
   72  RESULTS; COUNSELING; CONFIDENTIALITY.—
   73         (a) Before performing an HIV test:
   74         1. In a health care setting, the health care provider shall
   75  notify the person to be tested that the test is planned, provide
   76  information about the test, and advise the person that he or she
   77  has the right to decline the test. The health care provider
   78  shall also explain the right to confidential treatment of
   79  information identifying the subject of the test and the results
   80  of the test as provided by law. If a person declines the test,
   81  the health care provider shall note that fact in the person’s
   82  medical record. No person in this state shall order a test
   83  designed to identify the human immunodeficiency virus, or its
   84  antigen or antibody, without first obtaining the informed
   85  consent of the person upon whom the test is being performed,
   86  except as specified in paragraph (h). Informed consent shall be
   87  preceded by an explanation of the right to confidential
   88  treatment of information identifying the subject of the test and
   89  the results of the test to the extent provided by law.
   90  Information shall also be provided on the fact that a positive
   91  HIV test result will be reported to the county health department
   92  with sufficient information to identify the test subject and on
   93  the availability and location of sites at which anonymous
   94  testing is performed. As required in paragraph (3)(c), each
   95  county health department shall maintain a list of sites at which
   96  anonymous testing is performed, including the locations, phone
   97  numbers, and hours of operation of the sites. Consent need not
   98  be in writing provided there is documentation in the medical
   99  record that the test has been explained and the consent has been
  100  obtained.
  101         2.In a nonhealth care setting, a provider shall obtain the
  102  informed consent of the person upon whom the test is being
  103  performed. Informed consent shall be preceded by an explanation
  104  of the right to confidential treatment of information
  105  identifying the subject of the test and the results of the test
  106  as provided by law.
  107  
  108         The test subject shall also be informed that a positive HIV
  109  test result will be reported to the county health department
  110  with sufficient information to identify the test subject and on
  111  the availability and location of sites at which anonymous
  112  testing is performed. As required in paragraph (3)(c), each
  113  county health department shall maintain a list of sites at which
  114  anonymous testing is performed, including the locations,
  115  telephone numbers, and hours of operation of the sites.
  116         (b) Except as provided in paragraph (h), informed consent
  117  must be obtained from a legal guardian or other person
  118  authorized by law if when the person:
  119         1. Is not competent, is incapacitated, or is otherwise
  120  unable to make an informed judgment; or
  121         2. Has not reached the age of majority, except as provided
  122  in s. 384.30.
  123         (g) Human immunodeficiency virus test results contained in
  124  the medical records of a hospital licensed under chapter 395 may
  125  be released in accordance with s. 395.3025 without being subject
  126  to the requirements of subparagraph (e)2., subparagraph (e)9.,
  127  or paragraph (f) if; provided the hospital has notified the
  128  patient of the limited confidentiality protections afforded HIV
  129  test results contained in hospital medical records obtained
  130  written informed consent for the HIV test in accordance with
  131  provisions of this section.
  132         (h) Notwithstanding the provisions of paragraph (a),
  133  informed consent is not required:
  134         1. When testing for sexually transmissible diseases is
  135  required by state or federal law, or by rule including the
  136  following situations:
  137         a. HIV testing pursuant to s. 796.08 of persons convicted
  138  of prostitution or of procuring another to commit prostitution.
  139         b. HIV testing of inmates pursuant to s. 945.355 before
  140  prior to their release from prison by reason of parole,
  141  accumulation of gain-time credits, or expiration of sentence.
  142         c. Testing for HIV by a medical examiner in accordance with
  143  s. 406.11.
  144         d. HIV testing of pregnant women pursuant to s. 384.31.
  145         2. Those exceptions provided for blood, plasma, organs,
  146  skin, semen, or other human tissue pursuant to s. 381.0041.
  147         3. For the performance of an HIV-related test by licensed
  148  medical personnel in bona fide medical emergencies if when the
  149  test results are necessary for medical diagnostic purposes to
  150  provide appropriate emergency care or treatment to the person
  151  being tested and the patient is unable to consent, as supported
  152  by documentation in the medical record. Notification of test
  153  results in accordance with paragraph (c) is required.
  154         4. For the performance of an HIV-related test by licensed
  155  medical personnel for medical diagnosis of acute illness where,
  156  in the opinion of the attending physician, providing
  157  notification obtaining informed consent would be detrimental to
  158  the patient, as supported by documentation in the medical
  159  record, and the test results are necessary for medical
  160  diagnostic purposes to provide appropriate care or treatment to
  161  the person being tested. Notification of test results in
  162  accordance with paragraph (c) is required if it would not be
  163  detrimental to the patient. This subparagraph does not authorize
  164  the routine testing of patients for HIV infection without
  165  notification informed consent.
  166         5. If When HIV testing is performed as part of an autopsy
  167  for which consent was obtained pursuant to s. 872.04.
  168         6. For the performance of an HIV test upon a defendant
  169  pursuant to the victim’s request in a prosecution for any type
  170  of sexual battery where a blood sample is taken from the
  171  defendant voluntarily, pursuant to court order for any purpose,
  172  or pursuant to the provisions of s. 775.0877, s. 951.27, or s.
  173  960.003; however, the results of an any HIV test performed shall
  174  be disclosed solely to the victim and the defendant, except as
  175  provided in ss. 775.0877, 951.27, and 960.003.
  176         7. If When an HIV test is mandated by court order.
  177         8. For epidemiological research pursuant to s. 381.0031,
  178  for research consistent with institutional review boards created
  179  by 45 C.F.R. part 46, or for the performance of an HIV-related
  180  test for the purpose of research, if the testing is performed in
  181  a manner by which the identity of the test subject is not known
  182  and may not be retrieved by the researcher.
  183         9. If When human tissue is collected lawfully without the
  184  consent of the donor for corneal removal as authorized by s.
  185  765.5185 or enucleation of the eyes as authorized by s. 765.519.
  186         10. For the performance of an HIV test upon an individual
  187  who comes into contact with medical personnel in such a way that
  188  a significant exposure has occurred during the course of
  189  employment or within the scope of practice and where a blood
  190  sample is available which that was taken from that individual
  191  voluntarily by medical personnel for other purposes. The term
  192  “medical personnel” includes a licensed or certified health care
  193  professional; an employee of a health care professional or
  194  health care facility; employees of a laboratory licensed under
  195  chapter 483; personnel of a blood bank or plasma center; a
  196  medical student or other student who is receiving training as a
  197  health care professional at a health care facility; and a
  198  paramedic or emergency medical technician certified by the
  199  department to perform life-support procedures under s. 401.23.
  200         a. Before performing Prior to performance of an HIV test on
  201  a voluntarily obtained blood sample, the individual from whom
  202  the blood was obtained shall be requested to consent to the
  203  performance of the test and to the release of the results. If
  204  consent cannot be obtained within the time necessary to perform
  205  the HIV test and begin prophylactic treatment of the exposed
  206  medical personnel, all information concerning the performance of
  207  an HIV test and any HIV test result shall be documented only in
  208  the medical personnel’s record unless the individual gives
  209  written consent to entering this information on the individual’s
  210  medical record.
  211         b. Reasonable attempts to locate the individual and to
  212  obtain consent shall be made, and all attempts must be
  213  documented. If the individual cannot be found or is incapable of
  214  providing consent, an HIV test may be conducted on the available
  215  blood sample. If the individual does not voluntarily consent to
  216  the performance of an HIV test, the individual shall be informed
  217  that an HIV test will be performed, and counseling shall be
  218  furnished as provided in this section. However, HIV testing
  219  shall be conducted only after appropriate medical personnel
  220  under the supervision of a licensed physician documents, in the
  221  medical record of the medical personnel, that there has been a
  222  significant exposure and that, in accordance with the written
  223  protocols based on the National Centers for Disease Control and
  224  Prevention guidelines on HIV postexposure prophylaxis and in the
  225  physician’s medical judgment, the information is medically
  226  necessary to determine the course of treatment for the medical
  227  personnel.
  228         c. Costs of an any HIV test of a blood sample performed
  229  with or without the consent of the individual, as provided in
  230  this subparagraph, shall be borne by the medical personnel or
  231  the employer of the medical personnel. However, costs of testing
  232  or treatment not directly related to the initial HIV tests or
  233  costs of subsequent testing or treatment may not be borne by the
  234  medical personnel or the employer of the medical personnel.
  235         d. In order to use utilize the provisions of this
  236  subparagraph, the medical personnel must either be tested for
  237  HIV pursuant to this section or provide the results of an HIV
  238  test taken within 6 months before prior to the significant
  239  exposure if such test results are negative.
  240         e. A person who receives the results of an HIV test
  241  pursuant to this subparagraph shall maintain the confidentiality
  242  of the information received and of the persons tested. Such
  243  confidential information is exempt from s. 119.07(1).
  244         f. If the source of the exposure will not voluntarily
  245  submit to HIV testing and a blood sample is not available, the
  246  medical personnel or the employer of such person acting on
  247  behalf of the employee may seek a court order directing the
  248  source of the exposure to submit to HIV testing. A sworn
  249  statement by a physician licensed under chapter 458 or chapter
  250  459 that a significant exposure has occurred and that, in the
  251  physician’s medical judgment, testing is medically necessary to
  252  determine the course of treatment constitutes probable cause for
  253  the issuance of an order by the court. The results of the test
  254  shall be released to the source of the exposure and to the
  255  person who experienced the exposure.
  256         11. For the performance of an HIV test upon an individual
  257  who comes into contact with medical personnel in such a way that
  258  a significant exposure has occurred during the course of
  259  employment or within the scope of practice of the medical
  260  personnel while the medical personnel provides emergency medical
  261  treatment to the individual; or notwithstanding s. 384.287, an
  262  individual who comes into contact with nonmedical personnel in
  263  such a way that a significant exposure has occurred while the
  264  nonmedical personnel provides emergency medical assistance
  265  during a medical emergency. For the purposes of this
  266  subparagraph, a medical emergency means an emergency medical
  267  condition outside of a hospital or health care facility that
  268  provides physician care. The test may be performed only during
  269  the course of treatment for the medical emergency.
  270         a. An individual who is capable of providing consent shall
  271  be requested to consent to an HIV test before prior to the
  272  testing. If consent cannot be obtained within the time necessary
  273  to perform the HIV test and begin prophylactic treatment of the
  274  exposed medical personnel and nonmedical personnel, all
  275  information concerning the performance of an HIV test and its
  276  result, shall be documented only in the medical personnel’s or
  277  nonmedical personnel’s record unless the individual gives
  278  written consent to entering this information in on the
  279  individual’s medical record.
  280         b. HIV testing shall be conducted only after appropriate
  281  medical personnel under the supervision of a licensed physician
  282  documents, in the medical record of the medical personnel or
  283  nonmedical personnel, that there has been a significant exposure
  284  and that, in accordance with the written protocols based on the
  285  National Centers for Disease Control and Prevention guidelines
  286  on HIV postexposure prophylaxis and in the physician’s medical
  287  judgment, the information is medically necessary to determine
  288  the course of treatment for the medical personnel or nonmedical
  289  personnel.
  290         c. Costs of any HIV test performed with or without the
  291  consent of the individual, as provided in this subparagraph,
  292  shall be borne by the medical personnel or the employer of the
  293  medical personnel or nonmedical personnel. However, costs of
  294  testing or treatment not directly related to the initial HIV
  295  tests or costs of subsequent testing or treatment may not be
  296  borne by the medical personnel or the employer of the medical
  297  personnel or nonmedical personnel.
  298         d. In order to use utilize the provisions of this
  299  subparagraph, the medical personnel or nonmedical personnel
  300  shall be tested for HIV pursuant to this section or shall
  301  provide the results of an HIV test taken within 6 months before
  302  prior to the significant exposure if such test results are
  303  negative.
  304         e. A person who receives the results of an HIV test
  305  pursuant to this subparagraph shall maintain the confidentiality
  306  of the information received and of the persons tested. Such
  307  confidential information is exempt from s. 119.07(1).
  308         f. If the source of the exposure will not voluntarily
  309  submit to HIV testing and a blood sample was not obtained during
  310  treatment for the medical emergency, the medical personnel, the
  311  employer of the medical personnel acting on behalf of the
  312  employee, or the nonmedical personnel may seek a court order
  313  directing the source of the exposure to submit to HIV testing. A
  314  sworn statement by a physician licensed under chapter 458 or
  315  chapter 459 that a significant exposure has occurred and that,
  316  in the physician’s medical judgment, testing is medically
  317  necessary to determine the course of treatment constitutes
  318  probable cause for the issuance of an order by the court. The
  319  results of the test shall be released to the source of the
  320  exposure and to the person who experienced the exposure.
  321         12. For the performance of an HIV test by the medical
  322  examiner or attending physician upon an individual who expired
  323  or could not be resuscitated while receiving emergency medical
  324  assistance or care and who was the source of a significant
  325  exposure to medical or nonmedical personnel providing such
  326  assistance or care.
  327         a. HIV testing may be conducted only after appropriate
  328  medical personnel under the supervision of a licensed physician
  329  documents in the medical record of the medical personnel or
  330  nonmedical personnel that there has been a significant exposure
  331  and that, in accordance with the written protocols based on the
  332  National Centers for Disease Control and Prevention guidelines
  333  on HIV postexposure prophylaxis and in the physician’s medical
  334  judgment, the information is medically necessary to determine
  335  the course of treatment for the medical personnel or nonmedical
  336  personnel.
  337         b. Costs of an any HIV test performed under this
  338  subparagraph may not be charged to the deceased or to the family
  339  of the deceased person.
  340         c. For the provisions of this subparagraph to be
  341  applicable, the medical personnel or nonmedical personnel must
  342  be tested for HIV under this section or must provide the results
  343  of an HIV test taken within 6 months before the significant
  344  exposure if such test results are negative.
  345         d. A person who receives the results of an HIV test
  346  pursuant to this subparagraph shall comply with paragraph (e).
  347         13. For the performance of an HIV-related test medically
  348  indicated by licensed medical personnel for medical diagnosis of
  349  a hospitalized infant as necessary to provide appropriate care
  350  and treatment of the infant if when, after a reasonable attempt,
  351  a parent cannot be contacted to provide consent. The medical
  352  records of the infant must shall reflect the reason consent of
  353  the parent was not initially obtained. Test results shall be
  354  provided to the parent when the parent is located.
  355         14. For the performance of HIV testing conducted to monitor
  356  the clinical progress of a patient previously diagnosed to be
  357  HIV positive.
  358         15. For the performance of repeated HIV testing conducted
  359  to monitor possible conversion from a significant exposure.
  360         (4) HUMAN IMMUNODEFICIENCY VIRUS TESTING REQUIREMENTS;
  361  REGISTRATION WITH THE DEPARTMENT OF HEALTH; EXEMPTIONS FROM
  362  REGISTRATION.—No county health department and no other person in
  363  this state shall conduct or hold themselves out to the public as
  364  conducting a testing program for acquired immune deficiency
  365  syndrome or human immunodeficiency virus status without first
  366  registering with the Department of Health, reregistering each
  367  year, complying with all other applicable provisions of state
  368  law, and meeting the following requirements:
  369         (d) A program in a health care setting shall meet the
  370  notification criteria contained in subparagraph (2)(a)1. A
  371  program in a nonhealth care setting shall meet all informed
  372  consent criteria contained in subparagraph (2)(a)2. The program
  373  must meet all the informed consent criteria contained in
  374  subsection (2).
  375         Section 2. Subsection (2) of section 456.032, Florida
  376  Statutes, is amended to read:
  377         456.032 Hepatitis B or HIV carriers.—
  378         (2) Any person licensed by the department and any other
  379  person employed by a health care facility who contracts a blood
  380  borne infection shall have a rebuttable presumption that the
  381  illness was contracted in the course and scope of his or her
  382  employment, provided that the person, as soon as practicable,
  383  reports to the person’s supervisor or the facility’s risk
  384  manager any significant exposure, as that term is defined in s.
  385  381.004(1)(c), to blood or body fluids. The employer may test
  386  the blood or body fluid to determine if it is infected with the
  387  same disease contracted by the employee. The employer may rebut
  388  the presumption by the preponderance of the evidence. Except as
  389  expressly provided in this subsection, there shall be no
  390  presumption that a blood-borne infection is a job-related injury
  391  or illness.
  392         Section 3. This act shall take effect July 1, 2014.