HB 1399

1	A bill to be entitled
2	An act relating to sexually transmissible disease testing
3	and reporting; amending s. 381.004, F.S.; revising
4	criteria for releasing preliminary HIV test results;
5	providing that informed consent is not required to test
6	pregnant women for HIV; amending s. 384.25, F.S.;
7	requiring certain positive test results to be reported to
8	the Department of Health within a specified period of
9	time; revising provisions relating to method of reporting
10	of test results, time period during which the reports must
11	be made, content of reports, enforcement requirements, and
12	followup activities and requiring the department to adopt
13	rules therefor; deleting requirement that the department
14	submit certain reports; amending s. 384.31, F.S.;
15	requiring informed consent of a pregnant woman before
16	performing a test for sexually transmitted diseases;
17	requiring documentation if a pregnant woman declines to be
18	tested; deleting provision limiting liability of the
19	practitioner attending a patient who declined to be
20	tested; providing an effective date.
21
22	Be It Enacted by the Legislature of the State of Florida:
23
24	Section 1.  Paragraphs (d) and (h) of subsection (3) of
25	section 381.004, Florida Statutes, are amended to read:
26	381.004  HIV testing.--
27	(3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED
28	CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--
29	(d)  No positive preliminary test result shall be
30	determined as positive, and no positive test result shall be
31	revealed to any person, without corroborating or confirmatory
32	tests being conducted except in the following situations:
33	1.  Preliminary test results may be released to licensed
34	physicians or the medical or nonmedical personnel subject to the
35	significant exposure for purposes of subparagraphs (h)10., 11.,
36	and 12.
37	2.  Preliminary test results may be released to health care
38	providers and to the person tested when decisions about medical
39	care or treatment of, or recommendation to, the person tested
40	and, in the case of an intrapartum or postpartum woman, when
41	care, treatment, or recommendations regarding her newborn,
42	cannot await the results of confirmatory testing. Positive
43	preliminary HIV test results shall not be characterized to the
44	patient as a diagnosis of HIV infection. Justification for the
45	use of preliminary test results must be documented in the
46	medical record by the health care provider who ordered the test.
47	This subparagraph does not authorize the release of preliminary
48	test results for the purpose of routine identification of HIV-
49	infected individuals or when HIV testing is incidental to the
50	preliminary diagnosis or care of a patient.
51	3.  The results of rapid testing technologies shall be
52	considered preliminary and may be released in accordance with
53	the manufacturer's instructions as approved by the federal Food
54	and Drug Administration.
55	4.  Corroborating or confirmatory testing must be conducted
56	as followup to a positive preliminary test. Results shall be
57	communicated to the patient according to statute regardless of
58	the outcome. Except as provided in this section, test results
59	are confidential and exempt from the provisions of s. 119.07(1).
60	(h)  Notwithstanding the provisions of paragraph (a),
61	informed consent is not required:
62	1.  When testing for sexually transmissible diseases is
63	required by state or federal law, or by rule including the
64	following situations:
65	a.  HIV testing pursuant to s. 796.08 of persons convicted
66	of prostitution or of procuring another to commit prostitution.
67	b.  HIV testing of inmates pursuant to s. 945.355 prior to
68	their release from prison by reason of parole, accumulation of
69	gain-time credits, or expiration of sentence.
70	c.  Testing for HIV by a medical examiner in accordance
71	with s. 406.11.
72	d.  HIV testing of pregnant women pursuant to s. 384.31.
73	2.  Those exceptions provided for blood, plasma, organs,
74	skin, semen, or other human tissue pursuant to s. 381.0041.
75	3.  For the performance of an HIV-related test by licensed
76	medical personnel in bona fide medical emergencies when the test
77	results are necessary for medical diagnostic purposes to provide
78	appropriate emergency care or treatment to the person being
79	tested and the patient is unable to consent, as supported by
80	documentation in the medical record. Notification of test
81	results in accordance with paragraph (c) is required.
82	4.  For the performance of an HIV-related test by licensed
83	medical personnel for medical diagnosis of acute illness where,
84	in the opinion of the attending physician, obtaining informed
85	consent would be detrimental to the patient, as supported by
86	documentation in the medical record, and the test results are
87	necessary for medical diagnostic purposes to provide appropriate
88	care or treatment to the person being tested. Notification of
89	test results in accordance with paragraph (c) is required if it
90	would not be detrimental to the patient. This subparagraph does
91	not authorize the routine testing of patients for HIV infection
92	without informed consent.
93	5.  When HIV testing is performed as part of an autopsy for
94	which consent was obtained pursuant to s. 872.04.
95	6.  For the performance of an HIV test upon a defendant
96	pursuant to the victim's request in a prosecution for any type
97	of sexual battery where a blood sample is taken from the
98	defendant voluntarily, pursuant to court order for any purpose,
99	or pursuant to the provisions of s. 775.0877, s. 951.27, or s.
100	960.003; however, the results of any HIV test performed shall be
101	disclosed solely to the victim and the defendant, except as
102	provided in ss. 775.0877, 951.27, and 960.003.
103	7.  When an HIV test is mandated by court order.
104	8.  For epidemiological research pursuant to s. 381.0032,
105	for research consistent with institutional review boards created
106	by 45 C.F.R. part 46, or for the performance of an HIV-related
107	test for the purpose of research, if the testing is performed in
108	a manner by which the identity of the test subject is not known
109	and may not be retrieved by the researcher.
110	9.  When human tissue is collected lawfully without the
111	consent of the donor for corneal removal as authorized by s.
112	765.5185 or enucleation of the eyes as authorized by s. 765.519.
113	10.  For the performance of an HIV test upon an individual
114	who comes into contact with medical personnel in such a way that
115	a significant exposure has occurred during the course of
116	employment or within the scope of practice and where a blood
117	sample is available that was taken from that individual
118	voluntarily by medical personnel for other purposes. The term
119	"medical personnel" includes a licensed or certified health care
120	professional; an employee of a health care professional or
121	health care facility; employees of a laboratory licensed under
122	chapter 483; personnel of a blood bank or plasma center; a
123	medical student or other student who is receiving training as a
124	health care professional at a health care facility; and a
125	paramedic or emergency medical technician certified by the
126	department to perform life-support procedures under s. 401.23.
127	a.  Prior to performance of an HIV test on a voluntarily
128	obtained blood sample, the individual from whom the blood was
129	obtained shall be requested to consent to the performance of the
130	test and to the release of the results. The individual's refusal
131	to consent and all information concerning the performance of an
132	HIV test and any HIV test result shall be documented only in the
133	medical personnel's record unless the individual gives written
134	consent to entering this information on the individual's medical
135	record.
136	b.  Reasonable attempts to locate the individual and to
137	obtain consent shall be made, and all attempts must be
138	documented. If the individual cannot be found, an HIV test may
139	be conducted on the available blood sample. If the individual
140	does not voluntarily consent to the performance of an HIV test,
141	the individual shall be informed that an HIV test will be
142	performed, and counseling shall be furnished as provided in this
143	section. However, HIV testing shall be conducted only after a
144	licensed physician documents, in the medical record of the
145	medical personnel, that there has been a significant exposure
146	and that, in the physician's medical judgment, the information
147	is medically necessary to determine the course of treatment for
148	the medical personnel.
149	c.  Costs of any HIV test of a blood sample performed with
150	or without the consent of the individual, as provided in this
151	subparagraph, shall be borne by the medical personnel or the
152	employer of the medical personnel. However, costs of testing or
153	treatment not directly related to the initial HIV tests or costs
154	of subsequent testing or treatment shall not be borne by the
155	medical personnel or the employer of the medical personnel.
156	d.  In order to utilize the provisions of this
157	subparagraph, the medical personnel must either be tested for
158	HIV pursuant to this section or provide the results of an HIV
159	test taken within 6 months prior to the significant exposure if
160	such test results are negative.
161	e.  A person who receives the results of an HIV test
162	pursuant to this subparagraph shall maintain the confidentiality
163	of the information received and of the persons tested. Such
164	confidential information is exempt from s. 119.07(1).
165	f.  If the source of the exposure will not voluntarily
166	submit to HIV testing and a blood sample is not available, the
167	medical personnel or the employer of such person acting on
168	behalf of the employee may seek a court order directing the
169	source of the exposure to submit to HIV testing. A sworn
170	statement by a physician licensed under chapter 458 or chapter
171	459 that a significant exposure has occurred and that, in the
172	physician's medical judgment, testing is medically necessary to
173	determine the course of treatment constitutes probable cause for
174	the issuance of an order by the court. The results of the test
175	shall be released to the source of the exposure and to the
176	person who experienced the exposure.
177	11.  For the performance of an HIV test upon an individual
178	who comes into contact with medical personnel in such a way that
179	a significant exposure has occurred during the course of
180	employment or within the scope of practice of the medical
181	personnel while the medical personnel provides emergency medical
182	treatment to the individual; or who comes into contact with
183	nonmedical personnel in such a way that a significant exposure
184	has occurred while the nonmedical personnel provides emergency
185	medical assistance during a medical emergency. For the purposes
186	of this subparagraph, a medical emergency means an emergency
187	medical condition outside of a hospital or health care facility
188	that provides physician care. The test may be performed only
189	during the course of treatment for the medical emergency.
190	a.  An individual who is capable of providing consent shall
191	be requested to consent to an HIV test prior to the testing. The
192	individual's refusal to consent, and all information concerning
193	the performance of an HIV test and its result, shall be
194	documented only in the medical personnel's record unless the
195	individual gives written consent to entering this information on
196	the individual's medical record.
197	b.  HIV testing shall be conducted only after a licensed
198	physician documents, in the medical record of the medical
199	personnel or nonmedical personnel, that there has been a
200	significant exposure and that, in the physician's medical
201	judgment, the information is medically necessary to determine
202	the course of treatment for the medical personnel or nonmedical
203	personnel.
204	c.  Costs of any HIV test performed with or without the
205	consent of the individual, as provided in this subparagraph,
206	shall be borne by the medical personnel or the employer of the
207	medical personnel or nonmedical personnel. However, costs of
208	testing or treatment not directly related to the initial HIV
209	tests or costs of subsequent testing or treatment shall not be
210	borne by the medical personnel or the employer of the medical
211	personnel or nonmedical personnel.
212	d.  In order to utilize the provisions of this
213	subparagraph, the medical personnel or nonmedical personnel
214	shall be tested for HIV pursuant to this section or shall
215	provide the results of an HIV test taken within 6 months prior
216	to the significant exposure if such test results are negative.
217	e.  A person who receives the results of an HIV test
218	pursuant to this subparagraph shall maintain the confidentiality
219	of the information received and of the persons tested. Such
220	confidential information is exempt from s. 119.07(1).
221	f.  If the source of the exposure will not voluntarily
222	submit to HIV testing and a blood sample was not obtained during
223	treatment for the medical emergency, the medical personnel, the
224	employer of the medical personnel acting on behalf of the
225	employee, or the nonmedical personnel may seek a court order
226	directing the source of the exposure to submit to HIV testing. A
227	sworn statement by a physician licensed under chapter 458 or
228	chapter 459 that a significant exposure has occurred and that,
229	in the physician's medical judgment, testing is medically
230	necessary to determine the course of treatment constitutes
231	probable cause for the issuance of an order by the court. The
232	results of the test shall be released to the source of the
233	exposure and to the person who experienced the exposure.
234	12.  For the performance of an HIV test by the medical
235	examiner or attending physician upon an individual who expired
236	or could not be resuscitated while receiving emergency medical
237	assistance or care and who was the source of a significant
238	exposure to medical or nonmedical personnel providing such
239	assistance or care.
240	a.  HIV testing may be conducted only after a licensed
241	physician documents in the medical record of the medical
242	personnel or nonmedical personnel that there has been a
243	significant exposure and that, in the physician's medical
244	judgment, the information is medically necessary to determine
245	the course of treatment for the medical personnel or nonmedical
246	personnel.
247	b.  Costs of any HIV test performed under this subparagraph
248	may not be charged to the deceased or to the family of the
249	deceased person.
250	c.  For the provisions of this subparagraph to be
251	applicable, the medical personnel or nonmedical personnel must
252	be tested for HIV under this section or must provide the results
253	of an HIV test taken within 6 months before the significant
254	exposure if such test results are negative.
255	d.  A person who receives the results of an HIV test
256	pursuant to this subparagraph shall comply with paragraph (e).
257	13.  For the performance of an HIV-related test medically
258	indicated by licensed medical personnel for medical diagnosis of
259	a hospitalized infant as necessary to provide appropriate care
260	and treatment of the infant when, after a reasonable attempt, a
261	parent cannot be contacted to provide consent. The medical
262	records of the infant shall reflect the reason consent of the
263	parent was not initially obtained. Test results shall be
264	provided to the parent when the parent is located.
265	14.  For the performance of HIV testing conducted to
266	monitor the clinical progress of a patient previously diagnosed
267	to be HIV positive.
268	15.  For the performance of repeated HIV testing conducted
269	to monitor possible conversion from a significant exposure.
270	Section 2.  Section 384.25, Florida Statutes, is amended to
271	read:
272	384.25  Reporting required.--
273	(1)  Each person who makes a diagnosis of or treats a
274	person with a sexually transmissible disease and each laboratory
275	that performs a test for a sexually transmissible disease which
276	either concludes with a positive result for a sexually
277	transmissible disease or a result indicative of human
278	immunodeficiency virus (HIV) or acquired immune deficiency
279	syndrome (AIDS) shall report such facts as may be required by
280	the department by rule, within a time period as specified by
281	rule of the department, but in no case to exceed 2 weeks.
282	(2)  The department shall adopt rules specifying the
283	information required in and the maximum a minimum time period
284	for reporting a sexually transmissible disease. In adopting such
285	rules, the department shall consider the need for information,
286	protections for the privacy and confidentiality of the patient,
287	and the practical ability of persons and laboratories to report
288	in a reasonable fashion.
289	(3)  To ensure the confidentiality of persons infected with
290	the human immunodeficiency virus (HIV), reporting of HIV
291	infection and AIDS acquired immune deficiency syndrome (AIDS)
292	must be conducted using a system the HIV/AIDS Reporting System
293	(HARS) developed by the Centers for Disease Control and
294	Prevention of the United States Public Health Service or an
295	equivalent system.
296	(a)  The department shall adopt rules requiring each
297	physician and laboratory to report any newborn or infant up to
298	18 months of age who has been exposed to HIV. Such rules may
299	include the method and time period for reporting which may not
300	exceed 2 weeks, information to be included in the report,
301	enforcement requirements, and followup activities by the
302	department.
303	(3)  The department shall require reporting of physician
304	diagnosed cases of AIDS based upon diagnostic criteria from the
305	Centers for Disease Control and Prevention.
306	(b)(4)  The department may require physician and laboratory
307	reporting of HIV infection. However, only reports of HIV
308	infection identified on or after the effective date of the rule
309	developed by the department pursuant to this subsection shall be
310	accepted. The reporting may not affect or relate to anonymous
311	HIV testing programs conducted pursuant to s. 381.004(4) or to
312	university-based medical research protocols as determined by the
313	department.
314	(c)(5)  After notification of the test subject under
315	subsection (4), the department may, with the consent of the test
316	subject, notify school superintendents of students and school
317	personnel whose HIV tests are positive.
318	(6)  The department shall by February 1 of each year submit
319	to the Legislature an annual report relating to all information
320	obtained pursuant to this section.
321	(4)(7)  Each person who violates the provisions of this
322	section or the rules adopted hereunder may be fined by the
323	department up to $500 for each offense. The department shall
324	report each violation of this section to the regulatory agency
325	responsible for licensing each health care professional and each
326	laboratory to which these provisions apply.
327	Section 3.  Section 384.31, Florida Statutes, is amended to
328	read:
329	384.31  Serological Testing of pregnant women; duty of the
330	attendant.--
331	(1)  Every person, including every physician licensed under
332	chapter 458 or chapter 459 or midwife licensed under part I of
333	chapter 464 or chapter 467, attending a pregnant woman for
334	conditions relating to pregnancy during the period of gestation
335	and delivery shall take or cause the woman to be tested for
336	sexually transmissible diseases, including HIV, as taken a
337	sample of venous blood at a time or times specified by the
338	department rule. Testing Each sample of blood shall be conducted
339	tested by a laboratory approved for such purposes under part I
340	of chapter 483 for sexually transmissible diseases as required
341	by rule of the department. The woman shall be informed of the
342	tests that will be conducted and of her right to refuse testing.
343	If the pregnant woman objects to testing, a written statement of
344	objection, signed by the woman, shall be placed in the patient's
345	medical record and no testing shall occur.
346	(2)  At the time the venous blood sample is taken, testing
347	for human immunodeficiency virus (HIV) infection shall be
348	offered to each pregnant woman. The prevailing professional
349	standard of care in this state requires each health care
350	provider and midwife who attends a pregnant woman to counsel the
351	woman to be tested for human immunodeficiency virus (HIV).
352	Counseling shall include a discussion of the availability of
353	treatment if the pregnant woman tests HIV positive. If a
354	pregnant woman objects to HIV testing, reasonable steps shall be
355	taken to obtain a written statement of such objection, signed by
356	the patient, which shall be placed in the patient's medical
357	record. Every person, including every physician licensed under
358	chapter 458 or chapter 459 or midwife licensed under part I of
359	chapter 464 or chapter 467, who attends a pregnant woman who has
360	been offered and objects to HIV testing shall be immune from
361	liability arising out of or related to the contracting of HIV
362	infection or acquired immune deficiency syndrome (AIDS) by the
363	child from the mother.
364	Section 4.  This act shall take effect July 1, 2005.

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