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:

30

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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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