HB 1193CS

CHAMBER ACTION



1The Criminal Justice Committee recommends the following:
2
3     Council/Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to the testing of inmates for HIV
7infection in county and municipal detention facilities;
8amending s. 951.27, F.S.; allowing counties and
9municipalities the option to participate in a program to
10test each inmate for HIV prior to the inmate's release if
11the inmate's HIV status is unknown; providing certain
12exceptions; requiring county and municipal detention
13facilities to notify the Department of Health and the
14county health department where the inmate plans to reside
15following release if the inmate is HIV positive; requiring
16the detention facilities to provide special transitional
17assistance to an inmate who is HIV positive; providing for
18immunity for complying entities; amending s. 381.004,
19F.S.; providing that informed consent is not required for
20an HIV test of an inmate prior to the inmate's release
21from a municipal or county detention facility; providing
22an effective date.
23
24Be It Enacted by the Legislature of the State of Florida:
25
26     Section 1.  Section 951.27, Florida Statutes, is amended to
27read:
28     951.27  Blood tests of inmates.--
29     (1)  Each county and each municipal detention facility
30shall have a written procedure developed, in consultation with
31the facility medical provider, establishing conditions under
32which an inmate will be tested for infectious disease, including
33human immunodeficiency virus pursuant to s. 775.0877, which
34procedure is consistent with guidelines of the Centers for
35Disease Control and Prevention and recommendations of the
36Correctional Medical Authority. It is not unlawful for the
37person receiving the test results to divulge the test results to
38the sheriff or chief correctional officer.
39     (2)(a)  Each county or municipality has the local option,
40if authorized by a majority of the county's or municipality's
41governing body, to participate in the testing program provided
42in this subsection. The county or municipal detention facility
43that lies within the authority of any participating county or
44municipality shall, consistent with s. 381.004(3), perform an
45HIV test as defined in s. 381.004(2) on each inmate who is to be
46released from the facility unless the facility knows that the
47inmate is HIV positive or unless, within 120 days before the
48release date, the inmate has been tested for HIV and does not
49request retesting. The required test must be performed not less
50than 30 days before the release date of the inmate. A test is
51not required under this paragraph if an inmate is released due
52to an emergency or a court order and the detention facility
53receives less than 30 days' notice of the release date or if the
54inmate is transferred to the custody of the Department of
55Corrections for incarceration in the state correctional system.
56     (b)  If the county or municipal detention facility knows
57that an inmate who is to be released from the facility is HIV
58positive or has received a positive HIV test result, that
59facility shall, before the inmate is released:
60     1.  Notify, consistent with s. 381.004(3), the Department
61of Health and the county health department where the inmate
62being released plans to reside of the release date and HIV
63status of the inmate.
64     2.  Provide special transitional assistance to the inmate,
65which must include:
66     a.  Education on preventing the transmission of HIV to
67others and on the importance of receiving followup medical care
68and treatment.
69     b.  A written, individualized discharge plan that includes
70records of all laboratory and diagnostic test results,
71medication and treatment information, and referrals to and
72contacts with the county health department and local primary
73medical care services for the treatment of HIV infection that
74are available where the inmate plans to reside.
75     (3)(2)  Except as otherwise provided in this subsection,
76serologic blood test results obtained pursuant to subsection (1)
77or subsection (2) are confidential and exempt from the
78provisions of s. 119.07(1) and s. 24(a), Art. I of the State
79Constitution. However, such results may be provided to employees
80or officers of the sheriff or chief correctional officer who are
81responsible for the custody and care of the affected inmate and
82have a need to know such information, and as provided in ss.
83381.004(3), 775.0877, and 960.003. In addition, upon request of
84the victim or the victim's legal guardian, or the parent or
85legal guardian of the victim if the victim is a minor, the
86results of any HIV test performed on an inmate who has been
87arrested for any sexual offense involving oral, anal, or vaginal
88penetration by, or union with, the sexual organ of another,
89shall be disclosed to the victim or the victim's legal guardian,
90or to the parent or legal guardian of the victim if the victim
91is a minor. In such cases, the county or municipal detention
92facility shall furnish the test results to the Department of
93Health, which is responsible for disclosing the results to
94public health agencies as provided in s. 775.0877 and to the
95victim or the victim's legal guardian, or the parent or legal
96guardian of the victim if the victim is a minor, as provided in
97s. 960.003(3).
98     (4)(3)  The results of any serologic blood test on an
99inmate are a part of that inmate's permanent medical file. Upon
100transfer of the inmate to any other correctional facility, such
101file is also transferred, and all relevant authorized persons
102must be notified of positive HIV test results, as required in s.
103775.0877.
104     (5)  Notwithstanding any statute providing for a waiver of
105sovereign immunity, the state, its agencies, or subdivisions,
106and employees of the state, its agencies, or subdivisions are
107not liable to any person for negligently causing death or
108personal injury arising out of complying with this section.
109     Section 2.  Paragraph (h) of subsection (3) of section
110381.004, Florida Statutes, is amended to read:
111     381.004  HIV testing.--
112     (3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED
113CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--
114     (h)  Notwithstanding the provisions of paragraph (a),
115informed consent is not required:
116     1.  When testing for sexually transmissible diseases is
117required by state or federal law, or by rule including the
118following situations:
119     a.  HIV testing pursuant to s. 796.08 of persons convicted
120of prostitution or of procuring another to commit prostitution.
121     b.  HIV testing of inmates pursuant to s. 945.355 prior to
122their release from prison by reason of parole, accumulation of
123gain-time credits, or expiration of sentence.
124     c.  Testing for HIV by a medical examiner in accordance
125with s. 406.11.
126     d.  HIV testing of inmates pursuant to s. 951.27 prior to
127their release from a county or municipal detention facility.
128     2.  Those exceptions provided for blood, plasma, organs,
129skin, semen, or other human tissue pursuant to s. 381.0041.
130     3.  For the performance of an HIV-related test by licensed
131medical personnel in bona fide medical emergencies when the test
132results are necessary for medical diagnostic purposes to provide
133appropriate emergency care or treatment to the person being
134tested and the patient is unable to consent, as supported by
135documentation in the medical record. Notification of test
136results in accordance with paragraph (c) is required.
137     4.  For the performance of an HIV-related test by licensed
138medical personnel for medical diagnosis of acute illness where,
139in the opinion of the attending physician, obtaining informed
140consent would be detrimental to the patient, as supported by
141documentation in the medical record, and the test results are
142necessary for medical diagnostic purposes to provide appropriate
143care or treatment to the person being tested. Notification of
144test results in accordance with paragraph (c) is required if it
145would not be detrimental to the patient.  This subparagraph does
146not authorize the routine testing of patients for HIV infection
147without informed consent.
148     5.  When HIV testing is performed as part of an autopsy for
149which consent was obtained pursuant to s. 872.04.
150     6.  For the performance of an HIV test upon a defendant
151pursuant to the victim's request in a prosecution for any type
152of sexual battery where a blood sample is taken from the
153defendant voluntarily, pursuant to court order for any purpose,
154or pursuant to the provisions of s. 775.0877, s. 951.27, or s.
155960.003; however, the results of any HIV test performed shall be
156disclosed solely to the victim and the defendant, except as
157provided in ss. 775.0877, 951.27, and 960.003.
158     7.  When an HIV test is mandated by court order.
159     8.  For epidemiological research pursuant to s. 381.0032,
160for research consistent with institutional review boards created
161by 45 C.F.R. part 46, or for the performance of an HIV-related
162test for the purpose of research, if the testing is performed in
163a manner by which the identity of the test subject is not known
164and may not be retrieved by the researcher.
165     9.  When human tissue is collected lawfully without the
166consent of the donor for corneal removal as authorized by s.
167765.5185 or enucleation of the eyes as authorized by s. 765.519.
168     10.  For the performance of an HIV test upon an individual
169who comes into contact with medical personnel in such a way that
170a significant exposure has occurred during the course of
171employment or within the scope of practice and where a blood
172sample is available that was taken from that individual
173voluntarily by medical personnel for other purposes.  The term
174"medical personnel" includes a licensed or certified health care
175professional; an employee of a health care professional or
176health care facility; employees of a laboratory licensed under
177chapter 483; personnel of a blood bank or plasma center; a
178medical student or other student who is receiving training as a
179health care professional at a health care facility; and a
180paramedic or emergency medical technician certified by the
181department to perform life-support procedures under s. 401.23.
182     a.  Prior to performance of an HIV test on a voluntarily
183obtained blood sample, the individual from whom the blood was
184obtained shall be requested to consent to the performance of the
185test and to the release of the results.  The individual's
186refusal to consent and all information concerning the
187performance of an HIV test and any HIV test result shall be
188documented only in the medical personnel's record unless the
189individual gives written consent to entering this information on
190the individual's medical record.
191     b.  Reasonable attempts to locate the individual and to
192obtain consent shall be made, and all attempts must be
193documented. If the individual cannot be found, an HIV test may
194be conducted on the available blood sample. If the individual
195does not voluntarily consent to the performance of an HIV test,
196the individual shall be informed that an HIV test will be
197performed, and counseling shall be furnished as provided in this
198section.  However, HIV testing shall be conducted only after a
199licensed physician documents, in the medical record of the
200medical personnel, that there has been a significant exposure
201and that, in the physician's medical judgment, the information
202is medically necessary to determine the course of treatment for
203the medical personnel.
204     c.  Costs of any HIV test of a blood sample performed with
205or without the consent of the individual, as provided in this
206subparagraph, shall be borne by the medical personnel or the
207employer of the medical personnel. However, costs of testing or
208treatment not directly related to the initial HIV tests or costs
209of subsequent testing or treatment shall not be borne by the
210medical personnel or the employer of the medical personnel.
211     d.  In order to utilize the provisions of this
212subparagraph, the medical personnel must either be tested for
213HIV pursuant to this section or provide the results of an HIV
214test taken within 6 months prior to the significant exposure if
215such test results are negative.
216     e.  A person who receives the results of an HIV test
217pursuant to this subparagraph shall maintain the confidentiality
218of the information received and of the persons tested.  Such
219confidential information is exempt from s. 119.07(1).
220     f.  If the source of the exposure will not voluntarily
221submit to HIV testing and a blood sample is not available, the
222medical personnel or the employer of such person acting on
223behalf of the employee may seek a court order directing the
224source of the exposure to submit to HIV testing.  A sworn
225statement by a physician licensed under chapter 458 or chapter
226459 that a significant exposure has occurred and that, in the
227physician's medical judgment, testing is medically necessary to
228determine the course of treatment constitutes probable cause for
229the issuance of an order by the court.  The results of the test
230shall be released to the source of the exposure and to the
231person who experienced the exposure.
232     11.  For the performance of an HIV test upon an individual
233who comes into contact with medical personnel in such a way that
234a significant exposure has occurred during the course of
235employment or within the scope of practice of the medical
236personnel while the medical personnel provides emergency medical
237treatment to the individual; or who comes into contact with
238nonmedical personnel in such a way that a significant exposure
239has occurred while the nonmedical personnel provides emergency
240medical assistance during a medical emergency.  For the purposes
241of this subparagraph, a medical emergency means an emergency
242medical condition outside of a hospital or health care facility
243that provides physician care. The test may be performed only
244during the course of treatment for the medical emergency.
245     a.  An individual who is capable of providing consent shall
246be requested to consent to an HIV test prior to the testing. The
247individual's refusal to consent, and all information concerning
248the performance of an HIV test and its result, shall be
249documented only in the medical personnel's record unless the
250individual gives written consent to entering this information on
251the individual's medical record.
252     b.  HIV testing shall be conducted only after a licensed
253physician documents, in the medical record of the medical
254personnel or nonmedical personnel, that there has been a
255significant exposure and that, in the physician's medical
256judgment, the information is medically necessary to determine
257the course of treatment for the medical personnel or nonmedical
258personnel.
259     c.  Costs of any HIV test performed with or without the
260consent of the individual, as provided in this subparagraph,
261shall be borne by the medical personnel or the employer of the
262medical personnel or nonmedical personnel. However, costs of
263testing or treatment not directly related to the initial HIV
264tests or costs of subsequent testing or treatment shall not be
265borne by the medical personnel or the employer of the medical
266personnel or nonmedical personnel.
267     d.  In order to utilize the provisions of this
268subparagraph, the medical personnel or nonmedical personnel
269shall be tested for HIV pursuant to this section or shall
270provide the results of an HIV test taken within 6 months prior
271to the significant exposure if such test results are negative.
272     e.  A person who receives the results of an HIV test
273pursuant to this subparagraph shall maintain the confidentiality
274of the information received and of the persons tested.  Such
275confidential information is exempt from s. 119.07(1).
276     f.  If the source of the exposure will not voluntarily
277submit to HIV testing and a blood sample was not obtained during
278treatment for the medical emergency, the medical personnel, the
279employer of the medical personnel acting on behalf of the
280employee, or the nonmedical personnel may seek a court order
281directing the source of the exposure to submit to HIV testing.  
282A sworn statement by a physician licensed under chapter 458 or
283chapter 459 that a significant exposure has occurred and that,
284in the physician's medical judgment, testing is medically
285necessary to determine the course of treatment constitutes
286probable cause for the issuance of an order by the court.  The
287results of the test shall be released to the source of the
288exposure and to the person who experienced the exposure.
289     12.  For the performance of an HIV test by the medical
290examiner or attending physician upon an individual who expired
291or could not be resuscitated while receiving emergency medical
292assistance or care and who was the source of a significant
293exposure to medical or nonmedical personnel providing such
294assistance or care.
295     a.  HIV testing may be conducted only after a licensed
296physician documents in the medical record of the medical
297personnel or nonmedical personnel that there has been a
298significant exposure and that, in the physician's medical
299judgment, the information is medically necessary to determine
300the course of treatment for the medical personnel or nonmedical
301personnel.
302     b.  Costs of any HIV test performed under this subparagraph
303may not be charged to the deceased or to the family of the
304deceased person.
305     c.  For the provisions of this subparagraph to be
306applicable, the medical personnel or nonmedical personnel must
307be tested for HIV under this section or must provide the results
308of an HIV test taken within 6 months before the significant
309exposure if such test results are negative.
310     d.  A person who receives the results of an HIV test
311pursuant to this subparagraph shall comply with paragraph (e).
312     13.  For the performance of an HIV-related test medically
313indicated by licensed medical personnel for medical diagnosis of
314a hospitalized infant as necessary to provide appropriate care
315and treatment of the infant when, after a reasonable attempt, a
316parent cannot be contacted to provide consent. The medical
317records of the infant shall reflect the reason consent of the
318parent was not initially obtained.  Test results shall be
319provided to the parent when the parent is located.
320     14.  For the performance of HIV testing conducted to
321monitor the clinical progress of a patient previously diagnosed
322to be HIV positive.
323     15.  For the performance of repeated HIV testing conducted
324to monitor possible conversion from a significant exposure.
325     Section 3.  This act shall take effect July 1, 2005.


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