Senate Bill sb0954c1
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Florida Senate - 2001 CS for SB 954
By the Committee on Criminal Justice and Senators Dawson and
Miller
307-1556-01
1 A bill to be entitled
2 An act relating to the testing of inmates for
3 HIV; creating s. 944.355, F.S.; defining the
4 term "HIV test"; requiring the Department of
5 Corrections to perform an HIV test before an
6 inmate is released if the inmate's HIV status
7 is unknown; providing certain exceptions;
8 requiring that the Department of Corrections
9 notify the county health department where the
10 inmate plans to reside following release if the
11 inmate is HIV positive; requiring the
12 department to provide special transitional
13 assistance to an inmate who is HIV positive;
14 requiring the department to report to the
15 Legislature; amending s. 945.10, F.S.;
16 requiring certain medical records be released
17 to the Department of Health and the county
18 health department where an inmate who is HIV
19 positive plans to reside; reenacting s.
20 945.10(1)(a), F.S., relating to mental health,
21 medical, or substance abuse records of an
22 inmate; amending s. 381.004, F.S.; providing
23 that informed consent is not required for an
24 HIV test of an inmate prior to the inmate's
25 release; amending s. 944.704, F.S.; providing
26 additional duties for the department with
27 respect to transition assistance for inmates
28 who are HIV positive; providing an effective
29 date.
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1 WHEREAS, HIV and AIDS infections are one of the state's
2 most critical challenges, with Florida having the third
3 highest number of AIDS cases in the nation and the second
4 highest number of pediatric AIDS cases, and
5 WHEREAS, the prevalence of HIV and AIDS cases in the
6 state's prisons exceed the prevalence of HIV and AIDS in the
7 general population, and
8 WHEREAS, between 1989 and 1997, death due to AIDS
9 accounted for over half of inmate deaths in the state's
10 prisons, and
11 WHEREAS, recent advances in treatment for HIV and AIDS
12 can potentially reduce the number of opportunistic infections
13 and associated medical costs and delay the onset of death due
14 to the disease, and
15 WHEREAS, referral to appropriate medical and social
16 services upon the release of an inmate can play a crucial role
17 in the treatment, care, and secondary prevention efforts, NOW
18 THEREFORE,
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20 Be It Enacted by the Legislature of the State of Florida:
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22 Section 1. Section 945.355, Florida Statutes, is
23 created to read:
24 945.355 HIV testing of inmates prior to release.--
25 (1) As used in this section, the term "HIV test" means
26 a test ordered to determine the presence of the antibody or
27 antigen to human immunodeficiency virus or the presence of
28 human immunodeficiency virus infection.
29 (2) Pursuant to s. 381.004(3), the department shall
30 perform an HIV test on an inmate, whose HIV status is unknown
31 to the department, not less than 60 days prior to the inmate's
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1 presumptive release date from prison by reason of parole,
2 accumulation of gain-time credits, or expiration of sentence.
3 An inmate who is known to the department to be HIV positive or
4 who has been tested within the previous year and does not
5 request retesting need not be tested under this section, but
6 is subject to subsections (4) and (5). However, an inmate who
7 is released due to an emergency is exempt from the provisions
8 of this section.
9 (3) The department shall record the results of the HIV
10 test in the inmate's medical record.
11 (4) Pursuant to ss. 381.004(3) and 945.10, the
12 department shall notify the Department of Health and the
13 county health department where the inmate plans to reside
14 regarding an inmate who is known to be HIV positive or has
15 received an HIV positive test result under this section prior
16 to the release of that inmate.
17 (5) Prior to the release of an inmate who is known to
18 be HIV positive or who has received a positive HIV test result
19 under this section, the department shall provide special
20 transitional assistance to the inmate, which must include:
21 (a) Education on preventing the transmission of HIV to
22 others and on the importance of receiving follow-up care and
23 treatment.
24 (b) A written, individualized discharge plan that
25 includes referrals and contacts to the county health
26 department and local HIV primary care services in the area
27 where the inmate plans to reside.
28 (c) If appropriate, a 30-day supply of all medicines
29 the inmate is taking at the time of release.
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1 (6) The department shall report to the Legislature by
2 March 1, 2002, as to the implementation of this program and
3 the participation by inmates and staff.
4 Section 2. Paragraph (a) of subsection (1) of section
5 945.10, Florida Statutes, is reenacted, and subsection (2) of
6 that section is amended to read:
7 945.10 Confidential information.--
8 (1) Except as otherwise provided by law or in this
9 section, the following records and information of the
10 Department of Corrections are confidential and exempt from the
11 provisions of s. 119.07(1) and s. 24(a), Art. I of the State
12 Constitution:
13 (a) Mental health, medical, or substance abuse records
14 of an inmate or an offender.
15 (2) The records and information specified in
16 paragraphs (1)(a)-(h) (1)(b)-(h) may be released as follows
17 unless expressly prohibited by federal law:
18 (a) Information specified in paragraphs (1)(b), (d),
19 and (f) to the Office of the Governor, the Legislature, the
20 Parole Commission, the Department of Children and Family
21 Services, a private correctional facility or program that
22 operates under a contract, the Department of Legal Affairs, a
23 state attorney, the court, or a law enforcement agency. A
24 request for records or information pursuant to this paragraph
25 need not be in writing.
26 (b) Information specified in paragraphs (1)(c), (e),
27 and (h) to the Office of the Governor, the Legislature, the
28 Parole Commission, the Department of Children and Family
29 Services, a private correctional facility or program that
30 operates under contract, the Department of Legal Affairs, a
31 state attorney, the court, or a law enforcement agency. A
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1 request for records or information pursuant to this paragraph
2 must be in writing and a statement provided demonstrating a
3 need for the records or information.
4 (c) Information specified in paragraph (1)(b) to an
5 attorney representing an inmate under sentence of death,
6 except those portions of the records containing a victim's
7 statement or address, or the statement or address of a
8 relative of the victim. A request for records of information
9 pursuant to this paragraph must be in writing and a statement
10 provided demonstrating a need for the records or information.
11 (d) Information specified in paragraph (1)(b) to a
12 public defender representing a defendant, except those
13 portions of the records containing a victim's statement or
14 address, or the statement or address of a relative of the
15 victim. A request for records or information pursuant to this
16 paragraph need not be in writing.
17 (e) Information specified in paragraph (1)(b) to state
18 or local governmental agencies. A request for records or
19 information pursuant to this paragraph must be in writing and
20 a statement provided demonstrating a need for the records or
21 information.
22 (f) Information specified in paragraph (1)(b) to a
23 person conducting legitimate research. A request for records
24 and information pursuant to this paragraph must be in writing,
25 the person requesting the records or information must sign a
26 confidentiality agreement, and the department must approve the
27 request in writing.
28 (g) Information specified in paragraph (1)(a) to the
29 Department of Health and the county health department where an
30 inmate plans to reside if he or she has tested positive for
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1 the presence of the antibody or antigen to human
2 immunodeficiency virus infection pursuant to s. 945.355.
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4 Records and information released under this subsection remain
5 confidential and exempt from the provisions of s. 119.07(1)
6 and s. 24(a), Art. I of the State Constitution when held by
7 the receiving person or entity.
8 Section 3. Paragraph (h) of subsection (3) of section
9 381.004, Florida Statutes, is amended to read:
10 381.004 HIV testing.--
11 (3) HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED
12 CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--
13 (h) Notwithstanding the provisions of paragraph (a),
14 informed consent is not required:
15 1. When testing for sexually transmissible diseases is
16 required by state or federal law, or by rule including the
17 following situations:
18 a. HIV testing pursuant to s. 796.08 of persons
19 convicted of prostitution or of procuring another to commit
20 prostitution.
21 b. HIV testing of inmates pursuant to s. 945.355 prior
22 to their release from prison by reason of parole, accumulation
23 of gain-time credits, or expiration of sentence.
24 c.b. Testing for HIV by a medical examiner in
25 accordance with s. 406.11.
26 2. Those exceptions provided for blood, plasma,
27 organs, skin, semen, or other human tissue pursuant to s.
28 381.0041.
29 3. For the performance of an HIV-related test by
30 licensed medical personnel in bona fide medical emergencies
31 when the test results are necessary for medical diagnostic
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1 purposes to provide appropriate emergency care or treatment to
2 the person being tested and the patient is unable to consent,
3 as supported by documentation in the medical record.
4 Notification of test results in accordance with paragraph (c)
5 is required.
6 4. For the performance of an HIV-related test by
7 licensed medical personnel for medical diagnosis of acute
8 illness where, in the opinion of the attending physician,
9 obtaining informed consent would be detrimental to the
10 patient, as supported by documentation in the medical record,
11 and the test results are necessary for medical diagnostic
12 purposes to provide appropriate care or treatment to the
13 person being tested. Notification of test results in
14 accordance with paragraph (c) is required if it would not be
15 detrimental to the patient. This subparagraph does not
16 authorize the routine testing of patients for HIV infection
17 without informed consent.
18 5. When HIV testing is performed as part of an autopsy
19 for which consent was obtained pursuant to s. 872.04.
20 6. For the performance of an HIV test upon a defendant
21 pursuant to the victim's request in a prosecution for any type
22 of sexual battery where a blood sample is taken from the
23 defendant voluntarily, pursuant to court order for any
24 purpose, or pursuant to the provisions of s. 775.0877, s.
25 951.27, or s. 960.003; however, the results of any HIV test
26 performed shall be disclosed solely to the victim and the
27 defendant, except as provided in ss. 775.0877, 951.27, and
28 960.003.
29 7. When an HIV test is mandated by court order.
30 8. For epidemiological research pursuant to s.
31 381.0032, for research consistent with institutional review
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1 boards created by 45 C.F.R. part 46, or for the performance of
2 an HIV-related test for the purpose of research, if the
3 testing is performed in a manner by which the identity of the
4 test subject is not known and may not be retrieved by the
5 researcher.
6 9. When human tissue is collected lawfully without the
7 consent of the donor for corneal removal as authorized by s.
8 732.9185 or enucleation of the eyes as authorized by s.
9 732.919.
10 10. For the performance of an HIV test upon an
11 individual who comes into contact with medical personnel in
12 such a way that a significant exposure has occurred during the
13 course of employment or within the scope of practice and where
14 a blood sample is available that was taken from that
15 individual voluntarily by medical personnel for other
16 purposes. The term "medical personnel" includes a licensed or
17 certified health care professional; an employee of a health
18 care professional or health care facility; employees of a
19 laboratory licensed under chapter 483; personnel of a blood
20 bank or plasma center; a medical student or other student who
21 is receiving training as a health care professional at a
22 health care facility; and a paramedic or emergency medical
23 technician certified by the department to perform life-support
24 procedures under s. 401.23.
25 a. Prior to performance of an HIV test on a
26 voluntarily obtained blood sample, the individual from whom
27 the blood was obtained shall be requested to consent to the
28 performance of the test and to the release of the results.
29 The individual's refusal to consent and all information
30 concerning the performance of an HIV test and any HIV test
31 result shall be documented only in the medical personnel's
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1 record unless the individual gives written consent to entering
2 this information on the individual's medical record.
3 b. Reasonable attempts to locate the individual and to
4 obtain consent shall be made and all attempts must be
5 documented. If the individual cannot be found, an HIV test may
6 be conducted on the available blood sample. If the individual
7 does not voluntarily consent to the performance of an HIV
8 test, the individual shall be informed that an HIV test will
9 be performed, and counseling shall be furnished as provided in
10 this section. However, HIV testing shall be conducted only
11 after a licensed physician documents, in the medical record of
12 the medical personnel, that there has been a significant
13 exposure and that, in the physician's medical judgment, the
14 information is medically necessary to determine the course of
15 treatment for the medical personnel.
16 c. Costs of any HIV test of a blood sample performed
17 with or without the consent of the individual, as provided in
18 this subparagraph, shall be borne by the medical personnel or
19 the employer of the medical personnel. However, costs of
20 testing or treatment not directly related to the initial HIV
21 tests or costs of subsequent testing or treatment shall not be
22 borne by the medical personnel or the employer of the medical
23 personnel.
24 d. In order to utilize the provisions of this
25 subparagraph, the medical personnel must either be tested for
26 HIV pursuant to this section or provide the results of an HIV
27 test taken within 6 months prior to the significant exposure
28 if such test results are negative.
29 e. A person who receives the results of an HIV test
30 pursuant to this subparagraph shall maintain the
31 confidentiality of the information received and of the persons
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1 tested. Such confidential information is exempt from s.
2 119.07(1).
3 f. If the source of the exposure will not voluntarily
4 submit to HIV testing and a blood sample is not available, the
5 medical personnel or the employer of such person acting on
6 behalf of the employee may seek a court order directing the
7 source of the exposure to submit to HIV testing. A sworn
8 statement by a physician licensed under chapter 458 or chapter
9 459 that a significant exposure has occurred and that, in the
10 physician's medical judgment, testing is medically necessary
11 to determine the course of treatment constitutes probable
12 cause for the issuance of an order by the court. The results
13 of the test shall be released to the source of the exposure
14 and to the person who experienced the exposure.
15 11. For the performance of an HIV test upon an
16 individual who comes into contact with medical personnel in
17 such a way that a significant exposure has occurred during the
18 course of employment or within the scope of practice of the
19 medical personnel while the medical personnel provides
20 emergency medical treatment to the individual; or who comes
21 into contact with nonmedical personnel in such a way that a
22 significant exposure has occurred while the nonmedical
23 personnel provides emergency medical assistance during a
24 medical emergency. For the purposes of this subparagraph, a
25 medical emergency means an emergency medical condition outside
26 of a hospital or health care facility that provides physician
27 care. The test may be performed only during the course of
28 treatment for the medical emergency.
29 a. An individual who is capable of providing consent
30 shall be requested to consent to an HIV test prior to the
31 testing. The individual's refusal to consent, and all
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1 information concerning the performance of an HIV test and its
2 result, shall be documented only in the medical personnel's
3 record unless the individual gives written consent to entering
4 this information on the individual's medical record.
5 b. HIV testing shall be conducted only after a
6 licensed physician documents, in the medical record of the
7 medical personnel or nonmedical personnel, that there has been
8 a significant exposure and that, in the physician's medical
9 judgment, the information is medically necessary to determine
10 the course of treatment for the medical personnel or
11 nonmedical personnel.
12 c. Costs of any HIV test performed with or without the
13 consent of the individual, as provided in this subparagraph,
14 shall be borne by the medical personnel or the employer of the
15 medical personnel or nonmedical personnel. However, costs of
16 testing or treatment not directly related to the initial HIV
17 tests or costs of subsequent testing or treatment shall not be
18 borne by the medical personnel or the employer of the medical
19 personnel or nonmedical personnel.
20 d. In order to utilize the provisions of this
21 subparagraph, the medical personnel or nonmedical personnel
22 shall be tested for HIV pursuant to this section or shall
23 provide the results of an HIV test taken within 6 months prior
24 to the significant exposure if such test results are negative.
25 e. A person who receives the results of an HIV test
26 pursuant to this subparagraph shall maintain the
27 confidentiality of the information received and of the persons
28 tested. Such confidential information is exempt from s.
29 119.07(1).
30 f. If the source of the exposure will not voluntarily
31 submit to HIV testing and a blood sample was not obtained
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1 during treatment for the medical emergency, the medical
2 personnel, the employer of the medical personnel acting on
3 behalf of the employee, or the nonmedical personnel may seek a
4 court order directing the source of the exposure to submit to
5 HIV testing. A sworn statement by a physician licensed under
6 chapter 458 or chapter 459 that a significant exposure has
7 occurred and that, in the physician's medical judgment,
8 testing is medically necessary to determine the course of
9 treatment constitutes probable cause for the issuance of an
10 order by the court. The results of the test shall be released
11 to the source of the exposure and to the person who
12 experienced the exposure.
13 12. For the performance of an HIV test by the medical
14 examiner or attending physician upon an individual who expired
15 or could not be resuscitated while receiving emergency medical
16 assistance or care and who was the source of a significant
17 exposure to medical or nonmedical personnel providing such
18 assistance or care.
19 a. HIV testing may be conducted only after a licensed
20 physician documents in the medical record of the medical
21 personnel or nonmedical personnel that there has been a
22 significant exposure and that, in the physician's medical
23 judgment, the information is medically necessary to determine
24 the course of treatment for the medical personnel or
25 nonmedical personnel.
26 b. Costs of any HIV test performed under this
27 subparagraph may not be charged to the deceased or to the
28 family of the deceased person.
29 c. For the provisions of this subparagraph to be
30 applicable, the medical personnel or nonmedical personnel must
31 be tested for HIV under this section or must provide the
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1 results of an HIV test taken within 6 months before the
2 significant exposure if such test results are negative.
3 d. A person who receives the results of an HIV test
4 pursuant to this subparagraph shall comply with paragraph (e).
5 13. For the performance of an HIV-related test
6 medically indicated by licensed medical personnel for medical
7 diagnosis of a hospitalized infant as necessary to provide
8 appropriate care and treatment of the infant when, after a
9 reasonable attempt, a parent cannot be contacted to provide
10 consent. The medical records of the infant shall reflect the
11 reason consent of the parent was not initially obtained. Test
12 results shall be provided to the parent when the parent is
13 located.
14 14. For the performance of HIV testing conducted to
15 monitor the clinical progress of a patient previously
16 diagnosed to be HIV positive.
17 15. For the performance of repeated HIV testing
18 conducted to monitor possible conversion from a significant
19 exposure.
20 Section 4. Section 944.704, Florida Statutes, is
21 amended to read:
22 944.704 Staff who provide transition assistance;
23 duties.--The department shall provide a transition assistance
24 officer at major institutions whose duties include, but are
25 not limited to:
26 (1) Coordinating delivery of transition assistance
27 program services at the institution.
28 (2) Assisting in the development of each inmate's
29 postrelease plan.
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1 (3) Obtaining job placement information for
2 transmittal to the Department of Labor and Employment
3 Security.
4 (4) Providing a photo identification card to all
5 inmates prior to their release.
6 (5) Providing a written medical discharge plan,
7 referral to a county health department, and, if appropriate, a
8 supply of prescribed medication for an inmate known to be HIV
9 positive or who has received an HIV positive test result under
10 s. 945.355.
11 Section 5. This act shall take effect July 1, 2001.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 954
3
4 - The CS directs the Department of Corrections to test
every inmate for the HIV virus not less than 60 days
5 prior to release, where as the original bill did not
express such a time frame, and the CS would exempt from
6 such testing those inmates known to be HIV positive or
those who have been tested within the past year and does
7 not request another test, whereas the original bill only
exempted those tested within the previous 60 days.
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- The CS adds the following:
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. Requires that the Department of Corrections notify
10 the Department of Health and the local health
department in the county where that inmate plans
11 to reside for every inmate about to be released
who is determined to be HIV positive.
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. Mandates the Department of Corrections to report
13 to the Legislature by March 1, 2002, on the
implementation of this program.
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. Gives the Department of Corrections the authority
15 to provide HIV status information to the
Department of Health.
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. Adds inmates about to be released from prison to
17 the list of situations for which informed consent
to test for HIV is not required.
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. Provides for transitional assistance for those who
19 have tested positive for HIV described in the
original bill and carried over into the CS to the
20 list of transitional assistance items the
Department of Corrections staff who provide
21 transitional assistance provide to inmates being
released.
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