House Bill 3715c1
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    Florida House of Representatives - 1998             CS/HB 3715
        By the Committee on Health Care Services and
    Representatives Frankel and Brooks
  1                      A bill to be entitled
  2         An act relating to sexually transmitted
  3         diseases; amending s. 381.0035, F.S.; expanding
  4         AIDS instruction required in the educational
  5         course for health care facilities' employees
  6         and clients; amending s. 381.0038, F.S.;
  7         providing that the State Health Officer may
  8         authorize a needle exchange project in one
  9         county, if it is determined that the project
10         will be an effective component of an HIV
11         prevention program in the community; providing
12         project criteria; requiring a report; providing
13         an exemption from statutes relating to use or
14         possession of drug paraphernalia; amending s.
15         381.004, F.S.; providing a definition;
16         expanding information to be provided prior to
17         obtaining informed consent for an HIV test;
18         providing for informed consent of the legal
19         guardian of an incapacitated person; revising
20         provisions relating to notification of test
21         results; authorizing hospital emergency
22         departments and detention facilities to enlist
23         county health departments in notifying
24         individuals with positive test results;
25         authorizing release of preliminary HIV test
26         results under certain conditions; deleting
27         provisions relating to posttest counseling;
28         providing additional persons to whom the
29         identity of a test subject may be disclosed;
30         providing additional exceptions to informed
31         consent requirements; establishing probable
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  1         cause for a court order for testing certain
  2         persons; requiring annual registration of
  3         testing programs; deleting obsolete
  4         terminology; authorizing inspections and
  5         investigations by officers or employees of the
  6         Department of Health; directing the department
  7         to deny, suspend, or revoke registration of an
  8         HIV testing site for certain violations;
  9         providing a penalty and increasing an existing
10         penalty; providing requirements with respect to
11         the department's protocol for HIV testing and
12         counseling; amending s. 384.25, F.S.; deleting
13         provisions relating to protocols and to certain
14         notifications, to remove duplications and
15         conform to the act; amending s. 384.34, F.S.;
16         providing penalties, and increasing existing
17         penalties, relating to sexually transmissible
18         diseases; amending s. 455.604, F.S.; expanding
19         AIDS instruction for funeral directors and
20         embalmers, and adding requirements on protocols
21         for HIV testing of pregnant women; amending ss.
22         775.0877 and 960.003, F.S., to conform
23         references and cross references; providing an
24         effective date.
25
26  Be It Enacted by the Legislature of the State of Florida:
27
28         Section 1.  Subsection (1) of section 381.0035, Florida
29  Statutes, is amended to read:
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  1         381.0035  Educational course on human immunodeficiency
  2  virus and acquired immune deficiency syndrome; employees and
  3  clients of certain health care facilities.--
  4         (1)  The Department of Health shall require all
  5  employees and clients of facilities licensed under chapters
  6  393, 394, and 397 and employees of facilities licensed under
  7  chapter 395 and parts II, III, IV, and VI of chapter 400 to
  8  complete, biennially, a continuing educational course on the
  9  modes of transmission, infection control procedures, clinical
10  management, and prevention of human immunodeficiency virus and
11  acquired immune deficiency syndrome with an emphasis on
12  appropriate behavior and attitude change. Such instruction
13  shall include information on current Florida law and its
14  impact on testing, confidentiality of test results, and
15  treatment of patients, and any protocols and procedures
16  applicable to human immunodeficiency virus counseling and
17  testing, reporting, and partner notification issues pursuant
18  to ss. 381.004 and 384.25 and the offering of HIV testing to
19  pregnant women.
20         Section 2.  Subsection (4) is added to section
21  381.0038, Florida Statutes, to read:
22         381.0038  Education.--The Department of Health shall
23  establish a program to educate the public about the threat of
24  acquired immune deficiency syndrome.
25         (4)  The State Health Officer may authorize a needle
26  exchange project in one county, if the State Health Officer
27  determines that the project is likely to be an effective
28  component of a human immunodeficiency virus prevention program
29  in the community. The project shall be authorized for a
30  limited period of 3 years and shall not be conducted using
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  1  state funding.  The department is authorized to evaluate the
  2  effectiveness of the project using existing resources.
  3         (a)  The project shall meet the following criteria:
  4         1.  The project area must have a program for preventing
  5  human immunodeficiency virus transmission operating in the
  6  community.
  7         2.  The project must provide referral to existing
  8  substance abuse treatment and other appropriate health and
  9  social services.
10         3.  The project must provide education to participants
11  on the transmission of human immunodeficiency virus and
12  hepatitis B and C, and prevention measures.
13         4.  The project must provide skin testing for
14  tuberculosis and referral of persons whose tests results are
15  positive for appropriate followup.
16         5.  The project must comply with established standards
17  for the disposal of hazardous medical waste.
18         (b)  A report evaluating the effectiveness of the
19  project shall be submitted to the Governor, the President of
20  the Senate, and the Speaker of the House of Representatives by
21  February 1, 2001.
22         (c)  Exchange or possession of needles and syringes in
23  compliance with the procedures of the project shall not
24  constitute a violation of s. 893.147.
25         Section 3.  Section 381.004, Florida Statutes, is
26  amended to read:
27         381.004  Testing for human immunodeficiency virus.--
28         (1)  LEGISLATIVE INTENT.--The Legislature finds that
29  the use of tests designed to reveal a condition indicative of
30  human immunodeficiency virus infection can be a valuable tool
31  in protecting the public health.  The Legislature finds that
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  1  despite existing laws, regulations, and professional standards
  2  which require or promote the informed, voluntary, and
  3  confidential use of tests designed to reveal human
  4  immunodeficiency virus infection, many members of the public
  5  are deterred from seeking such testing because they
  6  misunderstand the nature of the test or fear that test results
  7  will be disclosed without their consent.  The Legislature
  8  finds that the public health will be served by facilitating
  9  informed, voluntary, and confidential use of tests designed to
10  detect human immunodeficiency virus infection.
11         (2)  DEFINITIONS.--As used in this section:
12         (a)  "HIV test" means a test ordered after July 6,
13  1988, to determine the presence of the antibody or antigen to
14  human immunodeficiency virus or the presence of human
15  immunodeficiency virus infection.
16         (b)  "HIV test result" means a laboratory report of a
17  human immunodeficiency virus test result entered into a
18  medical record on or after July 6, 1988, or any report or
19  notation in a medical record of a laboratory report of a human
20  immunodeficiency virus test.  As used in this section, the
21  term "HIV test result" does not include test results reported
22  to a health care provider by a patient.
23         (c)  "Preliminary HIV tests" means antibody screening
24  tests, such as the enzyme-linked immunosorbent assays (ELISAs)
25  and Single-Use Diagnostic System (SUDS).
26         (d)(c)  "Significant exposure" means:
27         1.  Exposure to blood or body fluids through
28  needlestick, instruments, or sharps;
29         2.  Exposure of mucous membranes to visible blood or
30  body fluids, to which universal precautions apply according to
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  1  the National Centers for Disease Control and Prevention,
  2  including, without limitations, the following body fluids:
  3         a.  Blood.
  4         b.  Semen.
  5         c.  Vaginal secretions.
  6         d.  Cerebro-spinal fluid (CSF).
  7         e.  Synovial fluid.
  8         f.  Pleural fluid.
  9         g.  Peritoneal fluid.
10         h.  Pericardial fluid.
11         i.  Amniotic fluid.
12         j.  Laboratory specimens that contain HIV (e.g.,
13  suspensions of concentrated virus); or
14         3.  Exposure of skin to visible blood or body fluids,
15  especially when the exposed skin is chapped, abraded, or
16  afflicted with dermatitis or the contact is prolonged or
17  involving an extensive area.
18         (e)(d)  "Test subject" or "subject of the test" means
19  the person upon whom an HIV test is performed, or the person
20  who has legal authority to make health care decisions for the
21  test subject.
22         (3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED
23  CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--
24         (a)  No person in this state shall order perform a test
25  designed to identify the human immunodeficiency virus, or its
26  antigen or antibody, without first obtaining the informed
27  consent of the person upon whom the test is being performed,
28  except as specified in paragraph (h)(i).  Informed consent
29  shall be preceded by:
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  1         1.  An explanation of the right to confidential
  2  treatment of information identifying the subject of the test
  3  and the results of the test to the extent provided by law.
  4         2.  The information that a positive HIV test result
  5  will be reported to the county health department with
  6  sufficient information to identify the test subject.
  7         3.  Information regarding the availability and location
  8  of anonymous testing sites and the fact that each county
  9  health department maintains a list of anonymous testing sites,
10  including the locations, phone numbers, and hours of operation
11  of the sites.
12
13  Consent need not be in writing provided there is documentation
14  in the medical record that the test has been explained and the
15  consent has been obtained.
16         (b)  Except as provided in paragraph (h) (i), informed
17  consent must be obtained from a legal guardian or other person
18  authorized by law when the person:
19         1.  Is not competent, is incapacitated, or is otherwise
20  unable to make an informed judgment; or
21         2.  Has not reached the age of majority, except as
22  provided in s. 384.30.
23         (c)  The person ordering the test or his or her
24  designee shall ensure that all reasonable efforts are made to
25  notify test subjects of their test results. Notification of
26  persons with positive test results shall include information
27  on the availability of appropriate medical and support
28  services, the importance of notifying partners who may have
29  been exposed, and information on preventing transmission of
30  human immunodeficiency virus. Notification of persons with
31  negative test results shall include, as appropriate,
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  1  information on preventing transmission of human
  2  immunodeficiency virus. When testing occurs in a hospital
  3  emergency department, detention facility, or other facility
  4  where the test subject has been released prior to notification
  5  of positive test results, informing the county health
  6  department for notification of the test subject shall fulfill
  7  this responsibility. No person shall order a test without
  8  making available to the person tested, prior to the test,
  9  information regarding measures for the prevention of, exposure
10  to, and transmission of human immunodeficiency virus. At the
11  time an HIV test is ordered, the person ordering the test
12  shall schedule a return visit with the test subject for the
13  purpose of disclosing the test results and conducting posttest
14  counseling as described in paragraph (e).
15         (d)  No test result shall be determined as positive,
16  and no positive test result shall be revealed to any person,
17  without corroborating or confirmatory tests being conducted,
18  except in the following situations:.  However,
19         1.  Preliminary test results may be released to
20  licensed physicians or the medical or nonmedical personnel
21  subject to the significant exposure for purposes of
22  subparagraphs (h)10., 11., and 12 (i)10. and 11.
23         2.  Preliminary test results may be released to health
24  care providers and to the person tested when decisions about
25  medical care or treatment of the person tested cannot await
26  the results of confirmatory testing.  The positive preliminary
27  HIV test results shall not be characterized to the patient as
28  a diagnosis of HIV infection.  Justification for the use of
29  preliminary test results must be documented in the medical
30  record by the provider who ordered the test.  This
31  subparagraph does not authorize the release of preliminary
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  1  test results for the purpose of routine identification of
  2  HIV-infected individuals or when HIV testing is incidental to
  3  the primary diagnosis or care of a patient.  Corroborating or
  4  confirmatory testing must still be conducted as followup to a
  5  positive preliminary test, and results shall be communicated
  6  to the patient according to this section regardless of the
  7  outcome. Except as provided in this section, test results are
  8  confidential and exempt from the provisions of s. 119.07(1).
  9         (e)  Except as otherwise provided, no test result shall
10  be revealed to the person upon whom the test was performed
11  without affording that person the immediate opportunity for
12  individual, face-to-face counseling about:
13         1.  The meaning of the test results;
14         2.  The possible need for additional testing;
15         3.  Measures for the prevention of the transmission of
16  the human immunodeficiency virus infection;
17         4.  The availability in the geographic area of any
18  appropriate health care services, including mental health
19  care, and appropriate social and support services;
20         5.  The benefits of locating and counseling any
21  individual by whom the infected individual may have been
22  exposed to the human immunodeficiency virus infection and any
23  individual whom the infected individual may have exposed to
24  such human immunodeficiency virus infection; and
25         6.  The availability, if any, of the services of public
26  health authorities with respect to locating and counseling any
27  individual described in subparagraph 5.
28
29  Telephonic posttest counseling shall be permitted when
30  reporting the HIV test results of a home access HIV test that
31  is approved by the United States Food and Drug Administration
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  1  and analyzed by a laboratory certified under the federal
  2  Clinical Laboratory Improvement Amendments of 1988 or licensed
  3  under part I of chapter 483.
  4         (e)(f)  Except as provided in this section, the
  5  identity of any person upon whom a test has been performed and
  6  test results are confidential and exempt from the provisions
  7  of s. 119.07(1).  No person who has obtained or has knowledge
  8  of a test result pursuant to this section may disclose or be
  9  compelled to disclose the identity of any person upon whom a
10  test is performed, or the results of such a test in a manner
11  which permits identification of the subject of the test,
12  except to the following persons:
13         1.  The subject of the test or the subject's legally
14  authorized representative.
15         2.  Any person, including third-party payors,
16  designated in a legally effective release of the test results
17  executed prior to or after the test by the subject of the test
18  or the subject's legally authorized representative. The test
19  subject may in writing authorize the disclosure of the test
20  subject's HIV test results to third party payors, who need not
21  be specifically identified, and to other persons to whom the
22  test subject subsequently issues a general release of medical
23  information.  A general release without such prior written
24  authorization is not sufficient to release HIV test results.
25         3.  An authorized agent or employee of a health
26  facility or health care provider if the health facility or
27  health care provider itself is authorized to obtain the test
28  results, the agent or employee participates in the
29  administration or provision of patient care or handles or
30  processes specimens of body fluids or tissues, and the agent
31  or employee has a need to know such information.  The
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  1  department shall adopt a rule defining which persons have a
  2  need to know pursuant to this subparagraph.
  3         4.  Health care providers consulting between themselves
  4  or with health care facilities to determine diagnosis and
  5  treatment. For purposes of this subparagraph, health care
  6  providers shall include licensed health care professionals
  7  employed by or associated with state, county, or municipal
  8  detention facilities when such health care professionals are
  9  acting exclusively for the purpose of providing diagnoses or
10  treatment of persons in the custody of such facilities.
11         5.  The department, in accordance with rules for
12  reporting and controlling the spread of disease, as otherwise
13  provided by state law.
14         6.  A health facility or health care provider which
15  procures, processes, distributes, or uses:
16         a.  A human body part from a deceased person, with
17  respect to medical information regarding that person; or
18         b.  Semen provided prior to July 6, 1988, for the
19  purpose of artificial insemination.
20         7.  Health facility staff committees, for the purposes
21  of conducting program monitoring, program evaluation, or
22  service reviews pursuant to chapters 395 and 766.
23         8.  Authorized medical or epidemiological researchers
24  who may not further disclose any identifying characteristics
25  or information.
26         9.  A person allowed access by a court order which is
27  issued in compliance with the following provisions:
28         a.  No court of this state shall issue such order
29  unless the court finds that the person seeking the test
30  results has demonstrated a compelling need for the test
31  results which cannot be accommodated by other means.  In
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  1  assessing compelling need, the court shall weigh the need for
  2  disclosure against the privacy interest of the test subject
  3  and the public interest which may be disserved by disclosure
  4  which deters blood, organ, and semen donation and future human
  5  immunodeficiency virus-related testing or which may lead to
  6  discrimination.  This paragraph shall not apply to blood bank
  7  donor records.
  8         b.  Pleadings pertaining to disclosure of test results
  9  shall substitute a pseudonym for the true name of the subject
10  of the test.  The disclosure to the parties of the subject's
11  true name shall be communicated confidentially in documents
12  not filed with the court.
13         c.  Before granting any such order, the court shall
14  provide the individual whose test result is in question with
15  notice and a reasonable opportunity to participate in the
16  proceedings if he or she is not already a party.
17         d.  Court proceedings as to disclosure of test results
18  shall be conducted in camera, unless the subject of the test
19  agrees to a hearing in open court or unless the court
20  determines that a public hearing is necessary to the public
21  interest and the proper administration of justice.
22         e.  Upon the issuance of an order to disclose test
23  results, the court shall impose appropriate safeguards against
24  unauthorized disclosure which shall specify the persons who
25  may have access to the information, the purposes for which the
26  information shall be used, and appropriate prohibitions on
27  future disclosure.
28         10.  A person allowed access by order of a judge of
29  compensation claims of the Division of Workers' Compensation
30  of the Department of Labor and Employment Security.  A judge
31  of compensation claims shall not issue such order unless he or
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  1  she finds that the person seeking the test results has
  2  demonstrated a compelling need for the test results which
  3  cannot be accommodated by other means.
  4         11.  Those employees of the department or of
  5  child-placing or child-caring agencies or of family foster
  6  homes, licensed pursuant to s. 409.175, who are directly
  7  involved in the placement, care, control, or custody of such
  8  test subject and who have a need to know such information;
  9  adoptive parents of such test subject; or any adult custodian,
10  any adult relative, or any person responsible for the child's
11  welfare, if the test subject was not tested under subparagraph
12  (b)2. and if a reasonable attempt has been made to locate and
13  inform the legal guardian of a test result. The department
14  shall adopt a rule to implement this subparagraph.
15         12.  Those employees of residential facilities or of
16  community-based care programs that care for developmentally
17  disabled persons, pursuant to chapter 393, who are directly
18  involved in the care, control, or custody of such test subject
19  and who have a need to know such information.  The department
20  shall adopt a rule to implement this subparagraph.
21         13.  A health care provider involved in the delivery of
22  a child, who may note the mother's HIV test results in the
23  child's medical record.
24         14.12.  Medical personnel or nonmedical personnel who
25  have been subject to a significant exposure during the course
26  of medical practice or in the performance of professional
27  duties, or individuals who are the subject of the significant
28  exposure as provided in subparagraphs (h)10., 11., and 12
29  (i)10. and 11.
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  1  The medical examiner shall disclose positive HIV test results
  2  to the department in accordance with rules for reporting and
  3  controlling the spread of disease.
  4         (f)(g)  Except as provided in this section, the
  5  identity of a person upon whom a test has been performed is
  6  confidential and exempt from the provisions of s. 119.07(1).
  7  No person to whom the results of a test have been disclosed
  8  may disclose the test results to another person except as
  9  authorized by this subsection and by ss. 951.27 and 960.003.
10  Whenever disclosure is made pursuant to this subsection, it
11  shall be accompanied by a statement in writing which includes
12  the following or substantially similar language: "This
13  information has been disclosed to you from records whose
14  confidentiality is protected by state law.  State law
15  prohibits you from making any further disclosure of such
16  information without the specific written consent of the person
17  to whom such information pertains, or as otherwise permitted
18  by state law.  A general authorization for the release of
19  medical or other information is NOT sufficient for this
20  purpose." An oral disclosure shall be accompanied by oral
21  notice and followed by a written notice within 10 days, except
22  that this notice shall not be required for disclosures made
23  pursuant to subparagraphs (e)(f)3. and 4.
24         (g)(h)  Human immunodeficiency virus test results
25  contained in the medical records of a hospital licensed under
26  chapter 395 may be released in accordance with s. 395.3025
27  without being subject to the requirements of subparagraph
28  (e)(f)2., subparagraph (e)(f)9., or paragraph (f)(g); provided
29  the hospital has obtained written informed consent for the HIV
30  test in accordance with provisions of this section.
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  1         (h)(i)  Notwithstanding the provisions of paragraph
  2  (a), informed consent is not required:
  3         1.  When testing for sexually transmissible diseases is
  4  required by state or federal law, or by rule including the
  5  following situations:
  6         a.  HIV testing pursuant to s. 796.08 of persons
  7  convicted of prostitution or of procuring another to commit
  8  prostitution.
  9         b.  Testing for HIV by a medical examiner in accordance
10  with s. 406.11.
11         2.  Those exceptions provided for blood, plasma,
12  organs, skin, semen, or other human tissue pursuant to s.
13  381.0041.
14         3.  For the performance of an HIV-related test by
15  licensed medical personnel in bona fide medical emergencies
16  when the test results are necessary for medical diagnostic
17  purposes to provide appropriate emergency care or treatment to
18  the person being tested and the patient is unable to consent,
19  as supported by documentation in the medical record.
20  Notification of test results in accordance with paragraph (c)
21  Posttest counseling is required.
22         4.  For the performance of an HIV-related test by
23  licensed medical personnel for medical diagnosis of acute
24  illness where, in the opinion of the attending physician,
25  obtaining informed consent would be detrimental to the
26  patient, as supported by documentation in the medical record,
27  and the test results are necessary for medical diagnostic
28  purposes to provide appropriate care or treatment to the
29  person being tested. Notification of test results in
30  accordance with paragraph (c) Posttest counseling is required
31  if it would not be detrimental to the patient.  This
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  1  subparagraph does not authorize the routine testing of
  2  patients for HIV infection without informed consent.
  3         5.  When HIV testing is performed as part of an autopsy
  4  for which consent was obtained pursuant to s. 872.04.
  5         6.  For the performance of an HIV test upon a defendant
  6  pursuant to the victim's request in a prosecution for any type
  7  of sexual battery where a blood sample is taken from the
  8  defendant voluntarily, pursuant to court order for any
  9  purpose, or pursuant to the provisions of s. 775.0877, s.
10  951.27, or s. 960.003; however, the results of any HIV test
11  performed shall be disclosed solely to the victim and the
12  defendant, except as provided in ss. 775.0877, 951.27, and
13  960.003.
14         7.  When an HIV test is mandated by court order.
15         8.  For epidemiological research pursuant to s.
16  381.0032, for research consistent with institutional review
17  boards created by 45 C.F.R. part 46, or for the performance of
18  an HIV-related test for the purpose of research, if the
19  testing is performed in a manner by which the identity of the
20  test subject is not known and may not be retrieved by the
21  researcher.
22         9.  When human tissue is collected lawfully without the
23  consent of the donor for corneal removal as authorized by s.
24  732.9185 or enucleation of the eyes as authorized by s.
25  732.919.
26         10.  For the performance of an HIV test upon an
27  individual who comes into contact with medical personnel in
28  such a way that a significant exposure has occurred during the
29  course of employment or within the scope of practice and where
30  a blood sample is available that was taken from that
31  individual voluntarily by medical personnel for other
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  1  purposes.  "Medical personnel" includes a licensed or
  2  certified health care professional; an employee of a health
  3  care professional, health care facility, or blood bank; and a
  4  paramedic or emergency medical technician as defined in s.
  5  401.23.
  6         a.  Prior to performance of an HIV test on a
  7  voluntarily obtained blood sample, the individual from whom
  8  the blood was obtained shall be requested to consent to the
  9  performance of the test and to the release of the results.
10  The source individual's refusal to consent and all information
11  concerning the performance of an HIV test and any HIV test
12  result shall be documented only in the medical personnel's
13  record unless the source individual gives written consent to
14  entering this information on the source individual's medical
15  record.
16         b.  Reasonable attempts to locate the source individual
17  and to obtain consent shall be made and all attempts must be
18  documented. If the source individual cannot be found, an HIV
19  test may be conducted on the available blood sample. If the
20  source individual does not voluntarily consent to the
21  performance of an HIV test, the source individual shall be
22  informed that an HIV test will be performed, and counseling
23  shall be furnished as provided in this section.  However, HIV
24  testing shall be conducted only after a licensed physician
25  documents, in the medical record of the medical personnel,
26  that there has been a significant exposure and that, in the
27  physician's medical judgment, the information is medically
28  necessary to determine the course of treatment for the medical
29  personnel.
30         c.  Costs of any HIV test of a blood sample performed
31  with or without the consent of the source individual, as
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  1  provided in this subparagraph, shall be borne by the medical
  2  personnel or the employer of the medical personnel. However,
  3  costs of testing or treatment not directly related to the
  4  initial HIV tests or costs of subsequent testing or treatment
  5  shall not be borne by the medical personnel or the employer of
  6  the medical personnel.
  7         d.  In order to utilize the provisions of this
  8  subparagraph, the medical personnel must either be tested for
  9  HIV pursuant to this section or provide the results of an HIV
10  test taken within 6 months prior to the significant exposure
11  if such test results are negative.
12         e.  A person who receives the results of an HIV test
13  pursuant to this subparagraph shall maintain the
14  confidentiality of the information received and of the persons
15  tested.  Such confidential information is exempt from s.
16  119.07(1).
17         f.  If the source of the exposure will not voluntarily
18  submit to HIV testing and a blood sample is not available, the
19  medical personnel or the employer of such person acting on
20  behalf of the employee may seek a court order directing the
21  source of the exposure to submit to HIV testing.  A sworn
22  statement by a physician licensed under chapter 458 or chapter
23  459 that a significant exposure has occurred and that, in the
24  physician's medical judgment, testing is medically necessary
25  to determine the course of treatment, constitutes probable
26  cause for the issuance of an order by the court.  The results
27  of the test shall be released to the source of the significant
28  exposure and to the person who experienced the significant
29  exposure.
30         11.  For the performance of an HIV test upon a source
31  an individual who comes into contact with medical personnel in
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  1  such a way that a significant exposure has occurred during the
  2  course of employment or within the scope of practice of the
  3  medical personnel while the medical personnel provides
  4  emergency medical treatment to the source individual; or who
  5  comes into contact with nonmedical personnel in such a way
  6  that a significant exposure has occurred while the nonmedical
  7  personnel provides emergency medical assistance during a
  8  medical emergency.  For the purposes of this subparagraph, a
  9  medical emergency means an emergency medical condition outside
10  of a hospital or health care facility that provides physician
11  care. The test may be performed only during the course of
12  treatment for the medical emergency.
13         a.  A source An individual who is capable of providing
14  consent shall be requested to consent to an HIV test prior to
15  the testing. The source individual's refusal to consent, and
16  all information concerning the performance of an HIV test and
17  its result, shall be documented only in the medical
18  personnel's record unless the source individual gives written
19  consent to entering this information on the source
20  individual's medical record.
21         b.  HIV testing shall be conducted only after a
22  licensed physician documents, in the medical record of the
23  medical personnel or nonmedical personnel, that there has been
24  a significant exposure and that, in the physician's medical
25  judgment, the information is medically necessary to determine
26  the course of treatment for the medical personnel or
27  nonmedical personnel.
28         c.  Costs of any HIV test performed with or without the
29  consent of the source individual, as provided in this
30  subparagraph, shall be borne by the medical personnel or the
31  employer of the medical personnel or nonmedical personnel.
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  1  However, costs of testing or treatment not directly related to
  2  the initial HIV tests or costs of subsequent testing or
  3  treatment shall not be borne by the medical personnel or the
  4  employer of the medical personnel or nonmedical personnel.
  5         d.  In order to utilize the provisions of this
  6  subparagraph, the medical personnel or nonmedical personnel
  7  shall be tested for HIV pursuant to this section or shall
  8  provide the results of an HIV test taken within 6 months prior
  9  to the significant exposure if such test results are negative.
10         e.  A person who receives the results of an HIV test
11  pursuant to this subparagraph shall maintain the
12  confidentiality of the information received and of the persons
13  tested.  Such confidential information is exempt from s.
14  119.07(1).
15         f.  If the source of the exposure will not voluntarily
16  submit to HIV testing and a blood sample was not obtained
17  during treatment for the medical emergency, the medical
18  personnel, the employer of such person acting on behalf of the
19  employee, or the nonmedical personnel may seek a court order
20  directing the source of the exposure to submit to HIV testing.
21  A sworn statement by a physician licensed under chapter 458 or
22  chapter 459 that a significant exposure has occurred and that,
23  in the physician's medical judgment, testing is medically
24  necessary to determine the course of treatment, constitutes
25  probable cause for the issuance of an order by the court.  The
26  results of the test shall be released to the source of the
27  significant exposure and to the person who experienced the
28  significant exposure.
29         12.  For the performance of an HIV test by the medical
30  examiner upon a deceased individual who is the source of a
31  significant exposure to medical personnel or nonmedical
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  1  personnel who provided emergency medical assistance and the
  2  individual expired or could not be resuscitated during
  3  treatment for the medical emergency.
  4         13.12.  For the performance of an HIV-related test
  5  medically indicated by licensed medical personnel for medical
  6  diagnosis of a hospitalized infant as necessary to provide
  7  appropriate care and treatment of the infant when, after a
  8  reasonable attempt, a parent cannot be contacted to provide
  9  consent. The medical records of the infant shall reflect the
10  reason consent of the parent was not initially obtained.  Test
11  results and posttest counseling shall be provided to the
12  parent when the parent is located.
13         14.  For the performance of HIV testing conducted to
14  monitor a previously diagnosed, HIV-positive patient's
15  clinical progress.
16         15.  For the performance of repeated HIV testing
17  conducted to monitor possible conversion from a significant
18  exposure.
19         (4)  COUNTY HEALTH DEPARTMENT NETWORK OF VOLUNTARY
20  HUMAN IMMUNODEFICIENCY VIRUS TESTING PROGRAMS.--
21         (a)  The Department of Health shall establish a network
22  of voluntary human immunodeficiency virus testing programs in
23  every county in the state. These programs shall be conducted
24  in each county health department established under the
25  provisions of part I of chapter 154. Additional programs may
26  be contracted to other private providers to the extent that
27  finances permit and local circumstances dictate.
28         (b)  Each county health department shall have the
29  ability to provide counseling and testing for human
30  immunodeficiency virus to each patient who receives services
31  and shall offer such testing on a voluntary basis to each
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  1  patient who presents himself or herself for services in a
  2  public health program designated by the State Health Officer
  3  by rule.
  4         (c)  Each county health department shall provide a
  5  program of counseling and testing for human immunodeficiency
  6  virus infection, on both an anonymous and confidential basis.
  7  Counseling provided to a patient tested on both an anonymous
  8  and confidential basis shall include informing the patient of
  9  the availability of partner-notification services, the
10  benefits of such services, and the confidentiality protections
11  available as part of such services. The Department of Health
12  or its designated agent shall continue to provide for
13  anonymous testing through an alternative testing site program
14  with sites throughout all areas of the state. Each county
15  health department shall maintain a list of anonymous testing
16  sites.  The list shall include the locations, phone numbers,
17  and hours of operation of the sites and shall be disseminated
18  to all persons and programs offering human immunodeficiency
19  virus testing within the service area of the county health
20  department, including physicians licensed under chapter 458 or
21  chapter 459. Except as provided in this section, the identity
22  of a person upon whom a test has been performed and test
23  results are confidential and exempt from the provisions of s.
24  119.07(1).
25         (d)  The result of a serologic test conducted under the
26  auspices of the Department of Health shall not be used to
27  determine if a person may be insured for disability, health,
28  or life insurance or to screen or determine suitability for,
29  or to discharge a person from, employment.  Any person who
30  violates the provisions of this subsection is guilty of a
31
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  1  misdemeanor of the first degree, punishable as provided in s.
  2  775.082 or s. 775.083.
  3         (5)  HUMAN IMMUNODEFICIENCY VIRUS TESTING REQUIREMENTS;
  4  REGISTRATION WITH THE DEPARTMENT OF HEALTH; EXEMPTIONS FROM
  5  REGISTRATION.--No county health department and no other person
  6  in this state shall conduct or hold themselves out to the
  7  public as conducting a testing program for acquired immune
  8  deficiency syndrome, acquired immune deficiency syndrome
  9  related complex, or human immunodeficiency virus status
10  without first registering with the Department of Health,
11  reregistering each year, complying with all other applicable
12  provisions of state law, and meeting the following
13  requirements:
14         (a)  The program must be directed by a person with a
15  minimum number of contact hours of experience in the
16  counseling of persons with acquired immune deficiency
17  syndrome, acquired immune deficiency syndrome related complex,
18  or human immunodeficiency virus infection, as established by
19  the Department of Health by rule.
20         (b)  The program must have all medical care supervised
21  by a physician licensed under the provisions of chapter 458 or
22  chapter 459.
23         (c)  The program shall have all laboratory procedures
24  performed in a laboratory licensed under the provisions of
25  chapter 483.
26         (d)  The program must meet all the informed consent
27  criteria contained in subsection (3).
28         (e)  The program must provide the opportunity for
29  pretest counseling on the meaning of a test for human
30  immunodeficiency virus, including medical indications for the
31  test; the possibility of false positive or false negative
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  1  results; the potential need for confirmatory testing; the
  2  potential social, medical, and economic consequences of a
  3  positive test result; and the need to eliminate high-risk
  4  behavior.
  5         (f)  The program must provide supplemental
  6  corroborative testing on all positive test results before the
  7  results of any positive test are provided to the patient.
  8  Except as provided in this section, the identity of any person
  9  upon whom a test has been performed and test results are
10  confidential and exempt from the provisions of s. 119.07(1).
11         (g)  The program must provide the opportunity for
12  face-to-face posttest counseling on the meaning of the test
13  results; the possible need for additional testing; the social,
14  medical, and economic consequences of a positive test result;
15  and the need to eliminate behavior which might spread the
16  disease to others.
17         (h)  Each person providing posttest counseling to a
18  patient with a positive test result shall receive specialized
19  training, to be specified by rule of the department, about the
20  special needs of persons with positive results, including
21  recognition of possible suicidal behavior, and shall refer the
22  patient for further health and social services as appropriate.
23         (i)  When services are provided for a charge during
24  pretest counseling, testing, supplemental testing, and
25  posttest counseling, the program must provide a complete list
26  of all such charges to the patient and the Department of
27  Health.
28         (j)  Nothing in this subsection shall be construed to
29  require a facility licensed under chapter 483 or a person
30  licensed under the provisions of chapter 457, chapter 458,
31  chapter 459, chapter 460, chapter 461, chapter 466, or chapter
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  1  467 to register with the Department of Health if he or she
  2  does not advertise or hold himself or herself out to the
  3  public as conducting testing programs for human
  4  immunodeficiency virus infection or specializing in such
  5  testing.
  6         (k)  The department and any duly authorized officer or
  7  employee of the department shall have the right to make
  8  inspections and investigations as are necessary to respond to
  9  complaints or to determine compliance with the provisions of
10  this section.
11         (l)  The department shall deny, suspend, or revoke the
12  registration of any person or agency that violates the
13  provisions of this section or any rules adopted under this
14  section when such violation constitutes an emergency affecting
15  the immediate health, safety, and welfare of a person
16  receiving service.
17         (6)  PENALTIES.--
18         (a)  Any violation of this section by a facility or
19  licensed health care provider shall be a ground for
20  disciplinary action contained in the facility's or
21  professional's respective licensing chapter.
22         (b)  Any person who violates the confidentiality
23  provisions of this section and s. 951.27 commits a felony of
24  the third misdemeanor of the first degree, punishable as
25  provided in ss. s. 775.082, or s. 775.083, 775.084, and
26  775.0877(7).
27         (c)  Any person who obtains information that identifies
28  an individual who has a sexually transmissible disease
29  including human immunodeficiency virus or acquired
30  immunodeficiency syndrome, who knew or should have known the
31  nature of the information and maliciously, or for monetary
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  1  gain, disseminates this information or otherwise makes this
  2  information known to any other person, except by providing it
  3  either to a physician or nurse employed by the department or
  4  to a law enforcement agency, commits a felony of the third
  5  degree, punishable as provided in ss. 775.082, 775.083,
  6  775.084, and 775.0877(7).
  7         (7)  EXEMPTIONS.--Except as provided in paragraph
  8  (4)(d) and ss. 627.429 and 641.3007, insurers and others
  9  participating in activities related to the insurance
10  application and underwriting process shall be exempt from this
11  section.
12         (8)  MODEL PROTOCOL FOR COUNSELING AND TESTING FOR
13  HUMAN IMMUNODEFICIENCY VIRUS.--The Department of Health shall
14  develop, by rule, a model protocol consistent with the
15  provisions of this section for counseling and testing persons
16  for the human immunodeficiency virus.  The protocol shall
17  include criteria for evaluating a patient's risk for human
18  immunodeficiency virus infection and for offering human
19  immunodeficiency virus testing, on a voluntary basis, as a
20  routine part of primary health care or admission to a health
21  care facility. The department shall ensure that the protocols
22  developed pursuant to this subsection are made available to
23  health care providers.
24         (9)  FEES.--
25         (a)  Each person or private organization registered as
26  an AIDS or HIV testing site shall pay the department a fee
27  which shall be set by rule of the department.
28         (b)  Fees established pursuant to paragraph (a) shall
29  be an amount sufficient to meet all costs incurred by the
30  department in carrying out its registration, data collection,
31  complaint monitoring, and administrative responsibilities
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  1  under this section, for all private AIDS or HIV testing sites,
  2  but shall not exceed $100.
  3         (c)  No other fees shall be charged by other
  4  governmental agencies for these purposes.
  5         (10)  RULES.--The Department of Health may adopt such
  6  rules as are necessary to implement this section.
  7         (11)  TESTING AS A CONDITION OF TREATMENT OR
  8  ADMISSION.--
  9         (a)  It is unlawful for any facility the operation of
10  which, or for any person engaged in an occupation the practice
11  of which, requires a license by the Agency for Health Care
12  Administration, the Department of Health, or the Department of
13  Business and Professional Regulation, to require any person to
14  take or submit to a human immunodeficiency virus-related test
15  as a condition of admission to any such facility or as a
16  condition of purchasing or obtaining any service or product
17  for which the license is required. This subsection shall not
18  be construed to prohibit any physician in good faith from
19  declining to provide a particular treatment requested by a
20  patient if the appropriateness of that treatment can only be
21  determined through a human immunodeficiency virus-related
22  test.
23         (b)  The Agency for Health Care Administration, the
24  Department of Health, and the Department of Business and
25  Professional Regulation shall adopt rules implementing this
26  subsection.
27         (c)  Any violation of this subsection or the rules
28  implementing it shall be punishable as provided in subsection
29  (6).
30         Section 4.  Section 384.25, Florida Statutes, is
31  amended to read:
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  1         384.25  Reporting required.--
  2         (1)  Each person who makes a diagnosis of or treats a
  3  person with a sexually transmissible disease and each
  4  laboratory that performs a test for a sexually transmissible
  5  disease which concludes with a positive result shall report
  6  such facts as may be required by the department by rule,
  7  within a time period as specified by rule of the department,
  8  but in no case to exceed 2 weeks.
  9         (2)  The department shall adopt rules specifying the
10  information required in and a minimum time period for
11  reporting a sexually transmissible disease.  In adopting such
12  rules, the department shall consider the need for information,
13  protections for the privacy and confidentiality of the
14  patient, and the practical ability of persons and laboratories
15  to report in a reasonable fashion.  To ensure the
16  confidentiality of persons infected with the human
17  immunodeficiency virus (HIV), reporting of HIV infection and
18  acquired immune deficiency syndrome (AIDS) must be conducted
19  using the HIV/AIDS Reporting System (HARS) developed by the
20  Centers for Disease Control and Prevention of the United
21  States Public Health Service.
22         (3)  The department shall require reporting of
23  physician diagnosed cases of AIDS based upon diagnostic
24  criteria from the Centers for Disease Control and Prevention.
25         (4)  The department may require physician and
26  laboratory reporting of HIV infection. However, only reports
27  of HIV infection identified on or after the effective date of
28  the rule developed by the department pursuant to this
29  subsection shall be accepted.  The reporting may not affect or
30  relate to anonymous HIV testing programs conducted pursuant to
31
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  1  s. 381.004(4) or to university-based medical research
  2  protocols as determined by the department.
  3         (5)  After notification of the test subject under
  4  subsection (4), the department may, with the consent of the
  5  test subject, notify school superintendents of students and
  6  school personnel whose HIV tests are positive.
  7         (6)  The department shall by February 1 of each year
  8  submit to the Legislature an annual report relating to all
  9  information obtained pursuant to this section.
10         (7)  The rules adopted by the department pursuant to
11  this section shall specify the protocols for the reporting
12  required or permitted by subsection (3) or subsection (4).
13  The protocol developed for implementation of subsection (4)
14  shall include, but need not be limited to, information to be
15  given to a test subject during pretest counseling, including:
16         (a)  The fact that a positive HIV test result may be
17  reported to the county health department with sufficient
18  information to identify the test subject and the availability
19  and location of anonymous testing sites; and
20         (b)  The partner notification services available
21  through the county health departments, the benefits of such
22  services, and the confidentiality protections available as
23  part of such services.
24         (7)(8)  Each person who violates the provisions of this
25  section or the rules adopted hereunder may be fined by the
26  department up to $500 for each offense.  The department shall
27  report each violation of this section to the regulatory agency
28  responsible for licensing each health care professional and
29  each laboratory to which these provisions apply.
30         Section 5.  Section 384.34, Florida Statutes, is
31  amended to read:
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  1         384.34  Penalties.--
  2         (1)  Any person who violates the provisions of s.
  3  384.24(1) commits a misdemeanor of the first degree,
  4  punishable as provided in s. 775.082 or s. 775.083.
  5         (2)  Any person who violates the provisions of s.
  6  384.26 or s. 384.29 commits a felony of the third misdemeanor
  7  of the first degree, punishable as provided in ss. s. 775.082,
  8  or s. 775.083, 775.084, and 775.0877(7).
  9         (3)  Any person who maliciously disseminates any false
10  information or report concerning the existence of any sexually
11  transmissible disease commits a felony of the third is guilty
12  of a misdemeanor of the second degree, punishable as provided
13  in ss. s. 775.082, or s. 775.083, 775.084, and 775.0877(7).
14         (4)  Any person who violates the provisions of the
15  department's rules pertaining to sexually transmissible
16  diseases may be punished by a fine not to exceed $500 for each
17  violation. Any penalties enforced under this subsection shall
18  be in addition to other penalties provided by this act.
19         (5)  Any person who violates the provisions of s.
20  384.24(2) commits a felony of the third degree, punishable as
21  provided in ss. 775.082, 775.083, 775.084, and 775.0877(7).
22  Any person who commits multiple violations of the provisions
23  of s. 384.24(2) commits a felony of the first degree,
24  punishable as provided in ss. 775.082, 775.083, 775.084, and
25  775.0877(7).
26         (6)  Any person who obtains information that identifies
27  an individual who has a sexually transmissible disease, who
28  knew or should have known the nature of the information and
29  maliciously, or for monetary gain, disseminates this
30  information or otherwise makes this information known to any
31  other person, except by providing it either to a physician or
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  1  nurse employed by the Department of Health or to a law
  2  enforcement agency, commits a felony of the third degree,
  3  punishable as provided in ss. 775.082, 775.083, 775.084, and
  4  775.0877(7).
  5         Section 6.  Subsection (1) of section 455.604, Florida
  6  Statutes, is amended to read:
  7         455.604  Requirement for instruction for certain
  8  licensees on human immunodeficiency virus and acquired immune
  9  deficiency syndrome.--
10         (1)  The appropriate board shall require each person
11  licensed or certified under chapter 457; chapter 458; chapter
12  459; chapter 460; chapter 461; chapter 463; chapter 464;
13  chapter 465; chapter 466; part II, part III, or part V of
14  chapter 468; chapter 470; or chapter 486 to complete a
15  continuing educational course, approved by the board, on human
16  immunodeficiency virus and acquired immune deficiency syndrome
17  as part of biennial relicensure or recertification. The course
18  shall consist of education on the modes of transmission,
19  infection control procedures, clinical management, and
20  prevention of human immunodeficiency virus and acquired immune
21  deficiency syndrome. Such course shall include information on
22  current Florida law on acquired immune deficiency syndrome,
23  and its impact on testing, confidentiality of test results,
24  and treatment of patients, and any protocols and procedures
25  applicable to human immunodeficiency virus counseling and
26  testing, reporting, and partner notification issues pursuant
27  to ss. 381.004 and 384.25 and the offering of HIV testing to
28  pregnant women.
29         Section 7.  Subsections (1) and (2) of section
30  775.0877, Florida Statutes, are amended to read:
31
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  1         775.0877  Criminal transmission of HIV; procedures;
  2  penalties.--
  3         (1)  In any case in which a person has been convicted
  4  of or has pled nolo contendere or guilty to, regardless of
  5  whether adjudication is withheld, any of the following
  6  offenses, or the attempt thereof, which offense or attempted
  7  offense involves the transmission of body fluids from one
  8  person to another:
  9         (a)  Section 794.011, relating to sexual battery,
10         (b)  Section 826.04, relating to incest,
11         (c)  Section 800.04(1), (2), and (3), relating to lewd,
12  lascivious, or indecent assault or act upon any person less
13  than 16 years of age,
14         (d)  Sections 784.011, 784.07(2)(a), and 784.08(2)(d),
15  relating to assault,
16         (e)  Sections 784.021, 784.07(2)(c), and 784.08(2)(b),
17  relating to aggravated assault,
18         (f)  Sections 784.03, 784.07(2)(b), and 784.08(2)(c),
19  relating to battery,
20         (g)  Sections 784.045, 784.07(2)(d), and 784.08(2)(a),
21  relating to aggravated battery,
22         (h)  Section 827.03(1), relating to child abuse,
23         (i)  Section 827.03(2), relating to aggravated child
24  abuse,
25         (j)  Section 825.102(1), relating to abuse of an
26  elderly person or disabled adult,
27         (k)  Section 825.102(2), relating to aggravated abuse
28  of an elderly person or disabled adult,
29         (l)  Section 827.071, relating to sexual performance by
30  person less than 18 years of age,
31
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  1         (m)  Sections 796.03, 796.07, and 796.08, relating to
  2  prostitution, or
  3         (n)  Section 381.0041(11)(b), relating to donation of
  4  blood, plasma, organs, skin, or other human tissue,
  5
  6  the court shall order the offender to undergo HIV testing, to
  7  be performed under the direction of the Department of Health
  8  and Rehabilitative Services in accordance with s. 381.004,
  9  unless the offender has undergone HIV testing voluntarily or
10  pursuant to procedures established in s. 381.004(3)(h)6.
11  381.004(3)(i)6. or s. 951.27, or any other applicable law or
12  rule providing for HIV testing of criminal offenders or
13  inmates, subsequent to her or his arrest for an offense
14  enumerated in paragraphs (a)-(n) for which she or he was
15  convicted or to which she or he pled nolo contendere or
16  guilty.  The results of an HIV test performed on an offender
17  pursuant to this subsection are not admissible in any criminal
18  proceeding arising out of the alleged offense.
19         (2)  The results of the HIV test must be disclosed
20  under the direction of the Department of Health and
21  Rehabilitative Services, to the offender who has been
22  convicted of or pled nolo contendere or guilty to an offense
23  specified in subsection (1), the public health agency of the
24  county in which the conviction occurred and, if different, the
25  county of residence of the offender, and, upon request
26  pursuant to s. 960.003, to the victim or the victim's legal
27  guardian, or the parent or legal guardian of the victim if the
28  victim is a minor.
29         Section 8.  Subsections (2) through (6) of section
30  960.003, Florida Statutes, are amended to read:
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  1         960.003  Human immunodeficiency virus testing for
  2  persons charged with or alleged by petition for delinquency to
  3  have committed certain offenses; disclosure of results to
  4  victims.--
  5         (2)  TESTING OF PERSON CHARGED WITH OR ALLEGED BY
  6  PETITION FOR DELINQUENCY TO HAVE COMMITTED CERTAIN
  7  OFFENSES.--In any case in which a person has been charged by
  8  information or indictment with or alleged by petition for
  9  delinquency to have committed any offense enumerated in s.
10  775.0877(1)(a)-(n), which involves the transmission of body
11  fluids from one person to another, upon request of the victim
12  or the victim's legal guardian, or of the parent or legal
13  guardian of the victim if the victim is a minor, the court
14  shall order such person to undergo HIV testing. The testing
15  shall be performed under the direction of the Department of
16  Health and Rehabilitative Services in accordance with s.
17  381.004.  The results of an HIV test performed on a defendant
18  or juvenile offender pursuant to this subsection shall not be
19  admissible in any criminal or juvenile proceeding arising out
20  of the alleged offense.
21         (3)  DISCLOSURE OF RESULTS.--
22         (a)  The results of the test shall be disclosed, under
23  the direction of the Department of Health and Rehabilitative
24  Services, to the person charged with or alleged by petition
25  for delinquency to have committed or to the person convicted
26  of or adjudicated delinquent for any offense enumerated in s.
27  775.0877(1)(a)-(n), which involves the transmission of body
28  fluids from one person to another, and, upon request, to the
29  victim or the victim's legal guardian, or the parent or legal
30  guardian of the victim if the victim is a minor, and to public
31  health agencies pursuant to s. 775.0877. If the alleged
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  1  offender is a juvenile, the test results shall also be
  2  disclosed to the parent or guardian. Otherwise, HIV test
  3  results obtained pursuant to this section are confidential and
  4  exempt from the provisions of s. 119.07(1) and s. 24(a), Art.
  5  I of the State Constitution and shall not be disclosed to any
  6  other person except as expressly authorized by law or court
  7  order.
  8         (b)  At the time that the results are disclosed to the
  9  victim or the victim's legal guardian, or to the parent or
10  legal guardian of a victim if the victim is a minor, the same
11  immediate opportunity for face-to-face counseling which must
12  be made available under s. 381.004(5)(g) 381.004(3)(e) to
13  those who undergo HIV testing shall also be afforded to the
14  victim or the victim's legal guardian, or to the parent or
15  legal guardian of the victim if the victim is a minor.
16         (4)  POSTCONVICTION TESTING.--If, for any reason, the
17  testing requested under subsection (2) has not been
18  undertaken, then upon request of the victim or the victim's
19  legal guardian, or the parent or legal guardian of the victim
20  if the victim is a minor, the court shall order the offender
21  to undergo HIV testing following conviction or delinquency
22  adjudication. The testing shall be performed under the
23  direction of the Department of Health and Rehabilitative
24  Services, and the results shall be disclosed in accordance
25  with the provisions of subsection (3).
26         (5)  EXCEPTIONS.--The provisions of subsections (2) and
27  (4) do not apply if:
28         (a)  The person charged with or convicted of or alleged
29  by petition for delinquency to have committed or been
30  adjudicated delinquent for an offense described in subsection
31  (2) has undergone HIV testing voluntarily or pursuant to
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  1  procedures established in s. 381.004(3)(h)6. 381.004(3)(i)6.
  2  or s. 951.27, or any other applicable law or rule providing
  3  for HIV testing of criminal defendants, inmates, or juvenile
  4  offenders, subsequent to his or her arrest, conviction, or
  5  delinquency adjudication for the offense for which he or she
  6  was charged or alleged by petition for delinquency to have
  7  committed; and
  8         (b)  The results of such HIV testing have been
  9  furnished to the victim or the victim's legal guardian, or the
10  parent or legal guardian of the victim if the victim is a
11  minor.
12         (6)  TESTING DURING INCARCERATION, DETENTION, OR
13  PLACEMENT; DISCLOSURE.--In any case in which a person
14  convicted of or adjudicated delinquent for an offense
15  described in subsection (2) has not been tested under
16  subsection (2), but undergoes HIV testing during his or her
17  incarceration, detention, or placement, the results of the
18  initial HIV testing shall be disclosed in accordance with the
19  provisions of subsection (3). Except as otherwise requested by
20  the victim or the victim's legal guardian, or the parent or
21  guardian of the victim if the victim is a minor, if the
22  initial test is conducted within the first year of the
23  imprisonment, detention, or placement, the request for
24  disclosure shall be considered a standing request for any
25  subsequent HIV test results obtained within 1 year after the
26  initial HIV test performed, and need not be repeated for each
27  test administration. Where the inmate or juvenile offender has
28  previously been tested pursuant to subsection (2) the request
29  for disclosure under this subsection shall be considered a
30  standing request for subsequent HIV results conducted within 1
31  year of the test performed pursuant to subsection (2). If the
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  1  HIV testing is performed by an agency other than the
  2  Department of Health and Rehabilitative Services, that agency
  3  shall be responsible for forwarding the test results to the
  4  Department of Health and Rehabilitative Services for
  5  disclosure in accordance with the provisions of subsection
  6  (3). This subsection shall not be limited to results of HIV
  7  tests administered subsequent to June 27, 1990, but shall also
  8  apply to the results of all HIV tests performed on inmates
  9  convicted of or juvenile offenders adjudicated delinquent for
10  sex offenses as described in subsection (2) during their
11  incarceration, detention, or placement prior to June 27, 1990.
12         Section 9.  This act shall take effect upon becoming a
13  law.
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