Senate Bill sb1008

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    Florida Senate - 2005                                  SB 1008

    By Senator Wilson





    33-244-05

  1                      A bill to be entitled

  2         An act relating to the testing of inmates for

  3         HIV infection in county and municipal detention

  4         facilities; amending s. 951.27, F.S.; requiring

  5         county and municipal detention facilities to

  6         perform an HIV test before an inmate is

  7         released if the inmate's HIV status is unknown;

  8         providing certain exceptions; requiring county

  9         and municipal detention facilities to notify

10         the Department of Health and the county health

11         department where the inmate plans to reside

12         following release if the inmate is HIV

13         positive; requiring the detention facilities to

14         provide special transitional assistance to an

15         inmate who is HIV positive; amending s.

16         381.004, F.S.; providing that informed consent

17         is not required for an HIV test of an inmate

18         prior to the inmate's release from a municipal

19         or county detention facility; providing an

20         effective date.

21  

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

23  

24         Section 1.  Section 951.27, Florida Statutes, is

25  amended to read:

26         951.27  Blood tests of inmates.--

27         (1)  Each county and each municipal detention facility

28  shall have a written procedure developed, in consultation with

29  the facility medical provider, establishing conditions under

30  which an inmate will be tested for infectious disease,

31  including human immunodeficiency virus pursuant to s.

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    Florida Senate - 2005                                  SB 1008
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 1  775.0877, which procedure is consistent with guidelines of the

 2  Centers for Disease Control and Prevention and recommendations

 3  of the Correctional Medical Authority. It is not unlawful for

 4  the person receiving the test results to divulge the test

 5  results to the sheriff or chief correctional officer.

 6         (2)(a)  The county or municipal detention facility

 7  shall, consistent with s. 381.004(3), perform an HIV test as

 8  defined in s. 381.004(2) on each inmate who is to be released

 9  from the facility unless the facility knows that the inmate is

10  HIV positive or unless, within 120 days before the release

11  date, the inmate has been tested for HIV and does not request

12  retesting.  The required test must be performed not less than

13  30 days before the release date of the inmate.  A test is not

14  required under this paragraph if an inmate is released due to

15  an emergency or a court order and the detention facility

16  receives less than 30 days' notice of the release date or if

17  the inmate is transferred to the custody of the Department of

18  Corrections for incarceration in the state correctional

19  system.

20         (b)  If the county or municipal detention facility

21  knows that an inmate who is to be released from the facility

22  is HIV positive or has received a positive HIV test result,

23  that facility shall, before the inmate is released:

24         1.  Notify, consistent with s. 381.004(3), the

25  Department of Health and the county health department where

26  the inmate being released plans to reside of the release date

27  and HIV status of the inmate.

28         2.  Provide special transitional assistance to the

29  inmate, which must include:

30  

31  

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    Florida Senate - 2005                                  SB 1008
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 1         a.  Education on preventing the transmission of HIV to

 2  others and on the importance of receiving followup medical

 3  care and treatment; and

 4         b.  A written, individualized discharge plan that

 5  includes referrals to and contacts with the county health

 6  department and local primary medical care services for the

 7  treatment of HIV infection which are available where the

 8  inmate plans to reside.

 9         (3)(2)  Except as otherwise provided in this

10  subsection, serologic blood test results obtained pursuant to

11  subsection (1) or subsection (2) are confidential and exempt

12  from the provisions of s. 119.07(1) and s. 24(a), Art. I of

13  the State Constitution. However, such results may be provided

14  to employees or officers of the sheriff or chief correctional

15  officer who are responsible for the custody and care of the

16  affected inmate and have a need to know such information, and

17  as provided in ss. 381.004(3), 775.0877, and 960.003. In

18  addition, upon request of the victim or the victim's legal

19  guardian, or the parent or legal guardian of the victim if the

20  victim is a minor, the results of any HIV test performed on an

21  inmate who has been arrested for any sexual offense involving

22  oral, anal, or vaginal penetration by, or union with, the

23  sexual organ of another, shall be disclosed to the victim or

24  the victim's legal guardian, or to the parent or legal

25  guardian of the victim if the victim is a minor. In such

26  cases, the county or municipal detention facility shall

27  furnish the test results to the Department of Health, which is

28  responsible for disclosing the results to public health

29  agencies as provided in s. 775.0877 and to the victim or the

30  victim's legal guardian, or the parent or legal guardian of

31  

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    Florida Senate - 2005                                  SB 1008
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 1  the victim if the victim is a minor, as provided in s.

 2  960.003(3).

 3         (4)(3)  The results of any serologic blood test on an

 4  inmate are a part of that inmate's permanent medical file.

 5  Upon transfer of the inmate to any other correctional

 6  facility, such file is also transferred, and all relevant

 7  authorized persons must be notified of positive HIV test

 8  results, as required in s. 775.0877.

 9         (5)  Notwithstanding any provision of the Florida

10  Statutes providing for a waiver of sovereign immunity, the

11  state, its agencies or subdivisions, or employees of the

12  state, its agencies, or subdivisions are not liable to any

13  person for negligently causing death or personal injury

14  arising out of complying with this section.

15         Section 2.  Paragraph (h) of subsection (3) of section

16  381.004, Florida Statutes, is amended to read:

17         381.004  HIV testing.--

18         (3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED

19  CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--

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

21  informed consent is not required:

22         1.  When testing for sexually transmissible diseases is

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

24  following situations:

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

26  convicted of prostitution or of procuring another to commit

27  prostitution.

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

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

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

31  

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 1         c.  Testing for HIV by a medical examiner in accordance

 2  with s. 406.11.

 3         d.  HIV testing of inmates pursuant to s. 951.27 prior

 4  to their release from a county or municipal detention

 5  facility.

 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  

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    Florida Senate - 2005                                  SB 1008
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 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

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    Florida Senate - 2005                                  SB 1008
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 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

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 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

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 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.

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    Florida Senate - 2005                                  SB 1008
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 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  

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    Florida Senate - 2005                                  SB 1008
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 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  

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 1         15.  For the performance of repeated HIV testing

 2  conducted to monitor possible conversion from a significant

 3  exposure.

 4         Section 3.  This act shall take effect July 1, 2005.

 5  

 6            *****************************************

 7                          SENATE SUMMARY

 8    Requires county and municipal detention facilities to
      test an inmate for HIV before release when the inmate's
 9    HIV status is unknown. Provides certain exceptions.
      Requires the detention facilities to notify the
10    Department of Health and the county health department
      where the inmate plans to reside following release if the
11    inmate is HIV positive. Requires the detention facilities
      to provide special transitional assistance to an inmate
12    who is HIV positive.  Provides that informed consent is
      not required for an HIV test of an inmate prior to the
13    inmate's release.

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