Senate Bill sb0308

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2002                                   SB 308

    By Senators Dawson and Miller





    30-331-02

  1                      A bill to be entitled

  2         An act relating to the testing of inmates for

  3         HIV; creating s. 945.355, 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 Department of Health and the county

10         health department where the inmate plans to

11         reside following release if the inmate is HIV

12         positive; requiring the department to provide

13         special transitional assistance to an inmate

14         who is HIV positive; requiring the department

15         to report to the Legislature; amending s.

16         945.10, F.S.; requiring that certain medical

17         records be released to the Department of Health

18         and the county health department where an

19         inmate who is HIV positive plans to reside;

20         reenacting s. 945.10(1)(a), F.S., relating to

21         mental health, medical, or substance abuse

22         records of an inmate; amending s. 381.004,

23         F.S.; providing that informed consent is not

24         required for an HIV test of an inmate prior to

25         the inmate's release; amending s. 944.704,

26         F.S.; providing additional duties for the

27         department with respect to transition

28         assistance for inmates who are HIV positive;

29         providing an appropriation; providing an

30         effective date.

31

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                                   SB 308
    30-331-02




  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 exceeds 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,

19

20  Be It Enacted by the Legislature of the State of Florida:

21

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)  If an inmate's HIV status is unknown to the

30  department, the department shall, pursuant to s. 381.004(3),

31  perform an HIV test on the inmate not less than 60 days prior

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                                   SB 308
    30-331-02




  1  to the inmate's presumptive release date from prison by reason

  2  of parole, accumulation of gain-time credits, or expiration of

  3  sentence. An inmate who is known to the department to be HIV

  4  positive or who has been tested within the previous year and

  5  does not request retesting need not be tested under this

  6  section, but is subject to subsections (4) and (5). However,

  7  an inmate who is released due to an emergency is exempt from

  8  the provisions 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 to and contacts with the county health

26  department and local HIV primary care services in the area

27  where the inmate plans to reside.

28         (c)  A 30-day supply of all HIV/AIDS-related

29  medications that the inmate is taking prior to release under

30  the protocols of the Department of Corrections and the

31

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                                   SB 308
    30-331-02




  1  treatment guidelines of the United States Department of Health

  2  and Human Services.

  3         Section 2.  By March 1, 2003, the Department of

  4  Corrections shall submit a report to the Legislature

  5  concerning the department's implementation of section 945.355,

  6  Florida Statutes. At a minimum, the report must include the

  7  total number of inmates tested under the program, the number

  8  of inmates who tested positive for HIV, the number of inmates

  9  who received special transitional assistance, and the number

10  of inmates who received medication in accordance with

11  protocols of the Department of Corrections and the treatment

12  guidelines of the United States Department of Health and Human

13  Services.

14         Section 3.  Paragraph (a) of subsection (1) of section

15  945.10, Florida Statutes, is reenacted, and subsection (2) of

16  that section is amended to read:

17         945.10  Confidential information.--

18         (1)  Except as otherwise provided by law or in this

19  section, the following records and information of the

20  Department of Corrections are confidential and exempt from the

21  provisions of s. 119.07(1) and s. 24(a), Art. I of the State

22  Constitution:

23         (a)  Mental health, medical, or substance abuse records

24  of an inmate or an offender.

25         (2)  The records and information specified in

26  paragraphs (1)(a)-(h) (1)(b)-(h) may be released as follows

27  unless expressly prohibited by federal law:

28         (a)  Information specified in paragraphs (1)(b), (d),

29  and (f) to the Office of the Governor, the Legislature, the

30  Parole Commission, the Department of Children and Family

31  Services, a private correctional facility or program that

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                                   SB 308
    30-331-02




  1  operates under a contract, the Department of Legal Affairs, a

  2  state attorney, the court, or a law enforcement agency. A

  3  request for records or information pursuant to this paragraph

  4  need not be in writing.

  5         (b)  Information specified in paragraphs (1)(c), (e),

  6  and (h) to the Office of the Governor, the Legislature, the

  7  Parole Commission, the Department of Children and Family

  8  Services, a private correctional facility or program that

  9  operates under contract, the Department of Legal Affairs, a

10  state attorney, the court, or a law enforcement agency. A

11  request for records or information pursuant to this paragraph

12  must be in writing and a statement provided demonstrating a

13  need for the records or information.

14         (c)  Information specified in paragraph (1)(b) to an

15  attorney representing an inmate under sentence of death,

16  except those portions of the records containing a victim's

17  statement or address, or the statement or address of a

18  relative of the victim. A request for records of information

19  pursuant to this paragraph must be in writing and a statement

20  provided demonstrating a need for the records or information.

21         (d)  Information specified in paragraph (1)(b) to a

22  public defender representing a defendant, except those

23  portions of the records containing a victim's statement or

24  address, or the statement or address of a relative of the

25  victim. A request for records or information pursuant to this

26  paragraph need not be in writing.

27         (e)  Information specified in paragraph (1)(b) to state

28  or local governmental agencies. A request for records or

29  information pursuant to this paragraph must be in writing and

30  a statement provided demonstrating a need for the records or

31  information.

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                                   SB 308
    30-331-02




  1         (f)  Information specified in paragraph (1)(b) to a

  2  person conducting legitimate research. A request for records

  3  and information pursuant to this paragraph must be in writing,

  4  the person requesting the records or information must sign a

  5  confidentiality agreement, and the department must approve the

  6  request in writing.

  7         (g)  Information specified in paragraph (1)(a) to the

  8  Department of Health and the county health department where an

  9  inmate plans to reside if he or she has tested positive for

10  the presence of the antibody or antigen to human

11  immunodeficiency virus infection pursuant to s. 945.355.

12

13  Records and information released under this subsection remain

14  confidential and exempt from the provisions of s. 119.07(1)

15  and s. 24(a), Art. I of the State Constitution when held by

16  the receiving person or entity.

17         Section 4.  Paragraph (h) of subsection (3) of section

18  381.004, Florida Statutes, is amended to read:

19         381.004  HIV testing.--

20         (3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED

21  CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--

22         (h)  Notwithstanding the provisions of paragraph (a),

23  informed consent is not required:

24         1.  When testing for sexually transmissible diseases is

25  required by state or federal law, or by rule including the

26  following situations:

27         a.  HIV testing pursuant to s. 796.08 of persons

28  convicted of prostitution or of procuring another to commit

29  prostitution.

30

31

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                                   SB 308
    30-331-02




  1         b.  HIV testing of inmates pursuant to s. 945.355 prior

  2  to their release from prison by reason of parole, accumulation

  3  of gain-time credits, or expiration of sentence.

  4         c.b.  Testing for HIV by a medical examiner in

  5  accordance with s. 406.11.

  6         2.  Those exceptions provided for blood, plasma,

  7  organs, skin, semen, or other human tissue pursuant to s.

  8  381.0041.

  9         3.  For the performance of an HIV-related test by

10  licensed medical personnel in bona fide medical emergencies

11  when the test results are necessary for medical diagnostic

12  purposes to provide appropriate emergency care or treatment to

13  the person being tested and the patient is unable to consent,

14  as supported by documentation in the medical record.

15  Notification of test results in accordance with paragraph (c)

16  is required.

17         4.  For the performance of an HIV-related test by

18  licensed medical personnel for medical diagnosis of acute

19  illness where, in the opinion of the attending physician,

20  obtaining informed consent would be detrimental to the

21  patient, as supported by documentation in the medical record,

22  and the test results are necessary for medical diagnostic

23  purposes to provide appropriate care or treatment to the

24  person being tested. Notification of test results in

25  accordance with paragraph (c) is required if it would not be

26  detrimental to the patient.  This subparagraph does not

27  authorize the routine testing of patients for HIV infection

28  without informed consent.

29         5.  When HIV testing is performed as part of an autopsy

30  for which consent was obtained pursuant to s. 872.04.

31

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                                   SB 308
    30-331-02




  1         6.  For the performance of an HIV test upon a defendant

  2  pursuant to the victim's request in a prosecution for any type

  3  of sexual battery where a blood sample is taken from the

  4  defendant voluntarily, pursuant to court order for any

  5  purpose, or pursuant to the provisions of s. 775.0877, s.

  6  951.27, or s. 960.003; however, the results of any HIV test

  7  performed shall be disclosed solely to the victim and the

  8  defendant, except as provided in ss. 775.0877, 951.27, and

  9  960.003.

10         7.  When an HIV test is mandated by court order.

11         8.  For epidemiological research pursuant to s.

12  381.0032, for research consistent with institutional review

13  boards created by 45 C.F.R. part 46, or for the performance of

14  an HIV-related test for the purpose of research, if the

15  testing is performed in a manner by which the identity of the

16  test subject is not known and may not be retrieved by the

17  researcher.

18         9.  When human tissue is collected lawfully without the

19  consent of the donor for corneal removal as authorized by s.

20  765.5185 or enucleation of the eyes as authorized by s.

21  765.519.

22         10.  For the performance of an HIV test upon an

23  individual who comes into contact with medical personnel in

24  such a way that a significant exposure has occurred during the

25  course of employment or within the scope of practice and where

26  a blood sample is available that was taken from that

27  individual voluntarily by medical personnel for other

28  purposes.  The term "medical personnel" includes a licensed or

29  certified health care professional; an employee of a health

30  care professional or health care facility; employees of a

31  laboratory licensed under chapter 483; personnel of a blood

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                                   SB 308
    30-331-02




  1  bank or plasma center; a medical student or other student who

  2  is receiving training as a health care professional at a

  3  health care facility; and a paramedic or emergency medical

  4  technician certified by the department to perform life-support

  5  procedures under s. 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 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 individual gives written consent to entering

14  this information on the individual's medical record.

15         b.  Reasonable attempts to locate the individual and to

16  obtain consent shall be made, and all attempts must be

17  documented. If the individual cannot be found, an HIV test may

18  be conducted on the available blood sample. If the individual

19  does not voluntarily consent to the performance of an HIV

20  test, the individual shall be informed that an HIV test will

21  be performed, and counseling shall be furnished as provided in

22  this section.  However, HIV testing shall be conducted only

23  after a licensed physician documents, in the medical record of

24  the medical personnel, that there has been a significant

25  exposure and that, in the physician's medical judgment, the

26  information is medically necessary to determine the course of

27  treatment for the medical personnel.

28         c.  Costs of any HIV test of a blood sample performed

29  with or without the consent of the individual, as provided in

30  this subparagraph, shall be borne by the medical personnel or

31  the employer of the medical personnel. However, costs of

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                                   SB 308
    30-331-02




  1  testing or treatment not directly related to the initial HIV

  2  tests or costs of subsequent testing or treatment shall not be

  3  borne by the medical personnel or the employer of the medical

  4  personnel.

  5         d.  In order to utilize the provisions of this

  6  subparagraph, the medical personnel must either be tested for

  7  HIV pursuant to this section or provide the results of an HIV

  8  test taken within 6 months prior to the significant exposure

  9  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 is not available, the

17  medical personnel or the employer of such person acting on

18  behalf of the employee may seek a court order directing the

19  source of the exposure to submit to HIV testing.  A sworn

20  statement by a physician licensed under chapter 458 or chapter

21  459 that a significant exposure has occurred and that, in the

22  physician's medical judgment, testing is medically necessary

23  to determine the course of treatment constitutes probable

24  cause for the issuance of an order by the court.  The results

25  of the test shall be released to the source of the exposure

26  and to the person who experienced the exposure.

27         11.  For the performance of an HIV test upon an

28  individual who comes into contact with medical personnel in

29  such a way that a significant exposure has occurred during the

30  course of employment or within the scope of practice of the

31  medical personnel while the medical personnel provides

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                                   SB 308
    30-331-02




  1  emergency medical treatment to the individual; or who comes

  2  into contact with nonmedical personnel in such a way that a

  3  significant exposure has occurred while the nonmedical

  4  personnel provides emergency medical assistance during a

  5  medical emergency.  For the purposes of this subparagraph, a

  6  medical emergency means an emergency medical condition outside

  7  of a hospital or health care facility that provides physician

  8  care. The test may be performed only during the course of

  9  treatment for the medical emergency.

10         a.  An individual who is capable of providing consent

11  shall be requested to consent to an HIV test prior to the

12  testing. The individual's refusal to consent, and all

13  information concerning the performance of an HIV test and its

14  result, shall be documented only in the medical personnel's

15  record unless the individual gives written consent to entering

16  this information on the individual's medical record.

17         b.  HIV testing shall be conducted only after a

18  licensed physician documents, in the medical record of the

19  medical personnel or nonmedical personnel, that there has been

20  a significant exposure and that, in the physician's medical

21  judgment, the information is medically necessary to determine

22  the course of treatment for the medical personnel or

23  nonmedical personnel.

24         c.  Costs of any HIV test performed with or without the

25  consent of the individual, as provided in this subparagraph,

26  shall be borne by the medical personnel or the employer of the

27  medical personnel or nonmedical personnel. However, costs of

28  testing or treatment not directly related to the initial HIV

29  tests or costs of subsequent testing or treatment shall not be

30  borne by the medical personnel or the employer of the medical

31  personnel or nonmedical personnel.

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                                   SB 308
    30-331-02




  1         d.  In order to utilize the provisions of this

  2  subparagraph, the medical personnel or nonmedical personnel

  3  shall be tested for HIV pursuant to this section or shall

  4  provide the results of an HIV test taken within 6 months prior

  5  to the significant exposure if such test results are negative.

  6         e.  A person who receives the results of an HIV test

  7  pursuant to this subparagraph shall maintain the

  8  confidentiality of the information received and of the persons

  9  tested.  Such confidential information is exempt from s.

10  119.07(1).

11         f.  If the source of the exposure will not voluntarily

12  submit to HIV testing and a blood sample was not obtained

13  during treatment for the medical emergency, the medical

14  personnel, the employer of the medical personnel acting on

15  behalf of the employee, or the nonmedical personnel may seek a

16  court order directing the source of the exposure to submit to

17  HIV testing.  A sworn statement by a physician licensed under

18  chapter 458 or chapter 459 that a significant exposure has

19  occurred and that, in the physician's medical judgment,

20  testing is medically necessary to determine the course of

21  treatment constitutes probable cause for the issuance of an

22  order by the court.  The results of the test shall be released

23  to the source of the exposure and to the person who

24  experienced the exposure.

25         12.  For the performance of an HIV test by the medical

26  examiner or attending physician upon an individual who expired

27  or could not be resuscitated while receiving emergency medical

28  assistance or care and who was the source of a significant

29  exposure to medical or nonmedical personnel providing such

30  assistance or care.

31

                                  12

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                                   SB 308
    30-331-02




  1         a.  HIV testing may be conducted only after a licensed

  2  physician documents in the medical record of the medical

  3  personnel or nonmedical personnel that there has been a

  4  significant exposure and that, in the physician's medical

  5  judgment, the information is medically necessary to determine

  6  the course of treatment for the medical personnel or

  7  nonmedical personnel.

  8         b.  Costs of any HIV test performed under this

  9  subparagraph may not be charged to the deceased or to the

10  family of the deceased person.

11         c.  For the provisions of this subparagraph to be

12  applicable, the medical personnel or nonmedical personnel must

13  be tested for HIV under this section or must provide the

14  results of an HIV test taken within 6 months before the

15  significant exposure if such test results are negative.

16         d.  A person who receives the results of an HIV test

17  pursuant to this subparagraph shall comply with paragraph (e).

18         13.  For the performance of an HIV-related test

19  medically indicated by licensed medical personnel for medical

20  diagnosis of a hospitalized infant as necessary to provide

21  appropriate care and treatment of the infant when, after a

22  reasonable attempt, a parent cannot be contacted to provide

23  consent. The medical records of the infant shall reflect the

24  reason consent of the parent was not initially obtained.  Test

25  results shall be provided to the parent when the parent is

26  located.

27         14.  For the performance of HIV testing conducted to

28  monitor the clinical progress of a patient previously

29  diagnosed to be HIV positive.

30

31

                                  13

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                                   SB 308
    30-331-02




  1         15.  For the performance of repeated HIV testing

  2  conducted to monitor possible conversion from a significant

  3  exposure.

  4         Section 5.  Section 944.704, Florida Statutes, is

  5  amended to read:

  6         944.704  Staff who provide transition assistance;

  7  duties.--The department shall provide a transition assistance

  8  specialist at each of the major institutions whose duties

  9  include, but are not limited to:

10         (1)  Coordinating delivery of transition assistance

11  program services at the institution and at the community

12  correctional centers authorized pursuant to s. 945.091(1)(b).

13         (2)  Assisting in the development of each inmate's

14  postrelease plan.

15         (3)  Obtaining job placement information.

16         (4)  Providing a written medical-discharge plan and

17  referral to a county health department.

18         (5)  For an inmate who is known to be HIV positive,

19  providing a 30-day supply of all HIV/AIDS-related medication

20  that the inmate is taking prior to release, if required under

21  protocols of the Department of Corrections and treatment

22  guidelines of the United States Department of Health and Human

23  Services.

24         (6)(4)  Facilitating placement in a private transition

25  housing program, if requested by any eligible inmate. If an

26  inmate who is nearing his or her date of release requests

27  placement in a contracted substance abuse transition housing

28  program, the transition assistance specialist shall inform the

29  inmate of program availability and assess the inmate's need

30  and suitability for transition housing assistance. If an

31  inmate is approved for placement, the specialist shall assist

                                  14

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                                   SB 308
    30-331-02




  1  the inmate and coordinate the release of the inmate with the

  2  selected program. If an inmate requests and is approved for

  3  placement in a contracted faith-based substance abuse

  4  transition housing program, the specialist must consult with

  5  the chaplain prior to such placement. In selecting inmates who

  6  are nearing their date of release for placement in a

  7  faith-based program, the department shall ensure that an

  8  inmate's faith orientation, or lack thereof, will not be

  9  considered in determining admission to the program and that

10  the program does not attempt to convert an inmate toward a

11  particular faith or religious preference.

12         (7)(5)  Providing a photo identification card to all

13  inmates prior to their release.

14

15  The transition assistance specialist may not be a correctional

16  officer or correctional probation officer as defined in s.

17  943.10.

18         Section 6.  The sum of $793,244 is appropriated from

19  the General Revenue Fund to the Department of Corrections for

20  the 2002-2003 fiscal year for the purpose of implementing the

21  provisions of this act.

22         Section 7.  This act shall take effect July 1, 2002.

23

24            *****************************************

25                          SENATE SUMMARY

26    Requires that the Department of Corrections test an
      inmate for HIV within 60 days before the inmate is
27    released. Requires that an inmate who has received a
      positive HIV test be provided with educational services,
28    a discharge plan, and medications prior to release.
      Requires the Department of Corrections to notify the
29    Department of Health and the county health department
      where the inmate will reside when an inmate who has
30    received a positive HIV test result is released. Requires
      that the Department of Corrections report to the
31    Legislature concerning implementation of the inmate
      testing program. (See bill for details.)
                                  15

CODING: Words stricken are deletions; words underlined are additions.