Senate Bill sb0186er

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  1                                 

  2         An act relating to sexually transmissible

  3         disease testing and reporting; amending s.

  4         381.004, F.S.; prohibiting the disclosure of a

  5         positive preliminary HIV test result to any

  6         person except as specifically authorized;

  7         providing that certain HIV test results are

  8         preliminary and may be released in accordance

  9         with federal requirements; providing that a

10         pregnant woman's informed consent is not

11         required; amending s. 384.25, F.S.; requiring

12         the reporting of a result indicative of HIV or

13         AIDS; requiring the Department of Health to

14         adopt rules specifying certain information,

15         including the maximum time period for reporting

16         a sexually transmissible disease; requiring the

17         use of a system developed by the Centers for

18         Disease Control or its equivalent for the

19         confidential reporting of HIV infection or

20         AIDS; requiring the department to adopt rules

21         governing the reporting of HIV-exposed infants

22         or newborns; deleting a provision requiring the

23         reporting of diagnosed AIDS cases based upon

24         certain criteria; deleting a provision

25         requiring that physicians and laboratories

26         report certain cases of HIV infection; deleting

27         a requirement that the department submit an

28         annual report to the Legislature; amending s.

29         384.31, F.S.; requiring that certain health

30         care professionals who attend a pregnant woman

31         test for sexually transmissible diseases and


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 1         HIV; requiring that a pregnant woman be

 2         informed of tests for sexually transmissible

 3         diseases and her right to refuse; requiring

 4         that a written statement of objection to

 5         testing for sexually transmissible diseases be

 6         placed in the pregnant woman's medical records;

 7         deleting a requirement that a health care

 8         provider counsel a pregnant woman concerning

 9         HIV testing; deleting a provision that provides

10         immunity from liability to a health care

11         provider who counsels a pregnant woman who

12         objects to HIV testing; providing an effective

13         date.

14  

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

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17         Section 1.  Paragraphs (d) and (h) of subsection (3) of

18  section 381.004, Florida Statutes, are amended to read:

19         381.004  HIV testing.--

20         (3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED

21  CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--

22         (d)  A positive preliminary No test result shall be

23  determined as positive, and no positive test result may not

24  shall be revealed to any person, without corroborating or

25  confirmatory tests being conducted except in the following

26  situations:

27         1.  Preliminary test results may be released to

28  licensed physicians or the medical or nonmedical personnel

29  subject to the significant exposure for purposes of

30  subparagraphs (h)10., 11., and 12.

31  


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 1         2.  Preliminary test results may be released to health

 2  care providers and to the person tested when decisions about

 3  medical care or treatment of, or recommendation to, the person

 4  tested and, in the case of an intrapartum or postpartum woman,

 5  when care, treatment, or recommendations regarding her

 6  newborn, cannot await the results of confirmatory testing.

 7  Positive preliminary HIV test results may shall not be

 8  characterized to the patient as a diagnosis of HIV infection.

 9  Justification for the use of preliminary test results must be

10  documented in the medical record by the health care provider

11  who ordered the test.

12         3.  The results of rapid testing technologies shall be

13  considered preliminary and may be released in accordance with

14  the manufacturer's instructions as approved by the federal

15  Food and Drug Administration. This subparagraph does not

16  authorize the release of preliminary test results for the

17  purpose of routine identification of HIV-infected individuals

18  or when HIV testing is incidental to the preliminary diagnosis

19  or care of a patient.

20         4.  Corroborating or confirmatory testing must be

21  conducted as followup to a positive preliminary test.  Results

22  shall be communicated to the patient according to statute

23  regardless of the outcome. Except as provided in this section,

24  test results are confidential and exempt from the provisions

25  of s. 119.07(1).

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

27  informed consent is not required:

28         1.  When testing for sexually transmissible diseases is

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

30  following situations:

31  


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

 2  convicted of prostitution or of procuring another to commit

 3  prostitution.

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

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

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

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

 8  with s. 406.11.

 9         d.  HIV testing of pregnant women pursuant to s.

10  384.31.

11         2.  Those exceptions provided for blood, plasma,

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

13  381.0041.

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

15  licensed medical personnel in bona fide medical emergencies

16  when the test results are necessary for medical diagnostic

17  purposes to provide appropriate emergency care or treatment to

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

19  as supported by documentation in the medical record.

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

21  is required.

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

23  licensed medical personnel for medical diagnosis of acute

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

25  obtaining informed consent would be detrimental to the

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

27  and the test results are necessary for medical diagnostic

28  purposes to provide appropriate care or treatment to the

29  person being tested. Notification of test results in

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

31  detrimental to the patient.  This subparagraph does not


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 1  authorize the routine testing of patients for HIV infection

 2  without informed consent.

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

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

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

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

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

 8  defendant voluntarily, pursuant to court order for any

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

10  951.27, or s. 960.003; however, the results of any HIV test

11  performed shall be disclosed solely to the victim and the

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

13  960.003.

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

15         8.  For epidemiological research pursuant to s.

16  381.0032, for research consistent with institutional review

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

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

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

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

21  researcher.

22         9.  When human tissue is collected lawfully without the

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

24  765.5185 or enucleation of the eyes as authorized by s.

25  765.519.

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

27  individual who comes into contact with medical personnel in

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

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

30  a blood sample is available that was taken from that

31  individual voluntarily by medical personnel for other


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

 2  certified health care professional; an employee of a health

 3  care professional or health care facility; employees of a

 4  laboratory licensed under chapter 483; personnel of a blood

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

 6  is receiving training as a health care professional at a

 7  health care facility; and a paramedic or emergency medical

 8  technician certified by the department to perform life-support

 9  procedures under s. 401.23.

10         a.  Prior to performance of an HIV test on a

11  voluntarily obtained blood sample, the individual from whom

12  the blood was obtained shall be requested to consent to the

13  performance of the test and to the release of the results.

14  The individual's refusal to consent and all information

15  concerning the performance of an HIV test and any HIV test

16  result shall be documented only in the medical personnel's

17  record unless the individual gives written consent to entering

18  this information on the individual's medical record.

19         b.  Reasonable attempts to locate the individual and to

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

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

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

23  does not voluntarily consent to the performance of an HIV

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

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

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

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

28  the medical personnel, that there has been a significant

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

30  information is medically necessary to determine the course of

31  treatment for the medical personnel.


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

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

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

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

 5  testing or treatment not directly related to the initial HIV

 6  tests or costs of subsequent testing or treatment may shall

 7  not be borne by the medical personnel or the employer of the

 8  medical personnel.

 9         d.  In order to utilize the provisions of this

10  subparagraph, the medical personnel must either be tested for

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

12  test taken within 6 months prior to the significant exposure

13  if such test results are negative.

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

15  pursuant to this subparagraph shall maintain the

16  confidentiality of the information received and of the persons

17  tested.  Such confidential information is exempt from s.

18  119.07(1).

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

20  submit to HIV testing and a blood sample is not available, the

21  medical personnel or the employer of such person acting on

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

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

24  statement by a physician licensed under chapter 458 or chapter

25  459 that a significant exposure has occurred and that, in the

26  physician's medical judgment, testing is medically necessary

27  to determine the course of treatment constitutes probable

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

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

30  and to the person who experienced the exposure.

31  


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

 2  individual who comes into contact with medical personnel in

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

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

 5  medical personnel while the medical personnel provides

 6  emergency medical treatment to the individual; or who comes

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

 8  significant exposure has occurred while the nonmedical

 9  personnel provides emergency medical assistance during a

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

11  medical emergency means an emergency medical condition outside

12  of a hospital or health care facility that provides physician

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

14  treatment for the medical emergency.

15         a.  An individual who is capable of providing consent

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

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

18  information concerning the performance of an HIV test and its

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

20  record unless the individual gives written consent to entering

21  this information on the individual's medical record.

22         b.  HIV testing shall be conducted only after a

23  licensed physician documents, in the medical record of the

24  medical personnel or nonmedical personnel, that there has been

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

26  judgment, the information is medically necessary to determine

27  the course of treatment for the medical personnel or

28  nonmedical personnel.

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

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

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


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 1  medical personnel or nonmedical personnel. However, costs of

 2  testing or treatment not directly related to the initial HIV

 3  tests or costs of subsequent testing or treatment may shall

 4  not be borne by the medical personnel or the employer of the

 5  medical personnel or nonmedical personnel.

 6         d.  In order to utilize the provisions of this

 7  subparagraph, the medical personnel or nonmedical personnel

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

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

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

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

12  pursuant to this subparagraph shall maintain the

13  confidentiality of the information received and of the persons

14  tested.  Such confidential information is exempt from s.

15  119.07(1).

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

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

18  during treatment for the medical emergency, the medical

19  personnel, the employer of the medical personnel acting on

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

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

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

23  chapter 458 or chapter 459 that a significant exposure has

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

25  testing is medically necessary to determine the course of

26  treatment constitutes probable cause for the issuance of an

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

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

29  experienced the exposure.

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

31  examiner or attending physician upon an individual who expired


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 1  or could not be resuscitated while receiving emergency medical

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

 3  exposure to medical or nonmedical personnel providing such

 4  assistance or care.

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

 6  physician documents in the medical record of the medical

 7  personnel or nonmedical personnel that there has been a

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

 9  judgment, the information is medically necessary to determine

10  the course of treatment for the medical personnel or

11  nonmedical personnel.

12         b.  Costs of any HIV test performed under this

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

14  family of the deceased person.

15         c.  For the provisions of this subparagraph to be

16  applicable, the medical personnel or nonmedical personnel must

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

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

19  significant exposure if such test results are negative.

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

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

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

23  medically indicated by licensed medical personnel for medical

24  diagnosis of a hospitalized infant as necessary to provide

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

26  reasonable attempt, a parent cannot be contacted to provide

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

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

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

30  located.

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 1         14.  For the performance of HIV testing conducted to

 2  monitor the clinical progress of a patient previously

 3  diagnosed to be HIV positive.

 4         15.  For the performance of repeated HIV testing

 5  conducted to monitor possible conversion from a significant

 6  exposure.

 7         Section 2.  Section 384.25, Florida Statutes, is

 8  amended to read:

 9         384.25  Reporting required.--

10         (1)  Each person who makes a diagnosis of or treats a

11  person with a sexually transmissible disease and each

12  laboratory that performs a test that for a sexually

13  transmissible disease which concludes with a positive result

14  for a sexually transmissible disease or a result indicative of

15  human immunodeficiency virus (HIV) or acquired immune

16  deficiency syndrome (AIDS) shall report such facts as may be

17  required by the department by rule, within a time period as

18  specified by rule of the department, but in no case to exceed

19  2 weeks.

20         (2)  The department shall adopt rules specifying the

21  information required in and the maximum a minimum time period

22  for reporting a sexually transmissible disease. In adopting

23  such rules, the department shall consider the need for

24  information, protections for the privacy and confidentiality

25  of the patient, and the practical ability of persons and

26  laboratories to report in a reasonable fashion.

27         (3)  To ensure the confidentiality of persons infected

28  with the human immunodeficiency virus (HIV), reporting of HIV

29  infection and acquired immune deficiency syndrome (AIDS) must

30  be conducted using a system the HIV/AIDS Reporting System

31  (HARS) developed by the Centers for Disease Control and


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 1  Prevention of the United States Public Health Service or an

 2  equivalent system.

 3         (a)  The department shall adopt rules requiring each

 4  physician and laboratory to report any newborn or infant up to

 5  18 months of age who has been exposed to HIV. Such rules may

 6  include the method and time period for reporting, which may

 7  not exceed 2 weeks, information to be included in the report,

 8  enforcement requirements, and follow-up activities by the

 9  department.

10         (3)  The department shall require reporting of

11  physician diagnosed cases of AIDS based upon diagnostic

12  criteria from the Centers for Disease Control and Prevention.

13         (b)(4)  The department may require physician and

14  laboratory reporting of HIV infection. However, only reports

15  of HIV infection identified on or after the effective date of

16  the rule developed by the department pursuant to this

17  subsection shall be accepted. The reporting may not affect or

18  relate to anonymous HIV testing programs conducted pursuant to

19  s. 381.004(4) or to university-based medical research

20  protocols as determined by the department.

21         (c)(5)  After notification of the test subject under

22  subsection (4), the department may, with the consent of the

23  test subject, notify school superintendents of students and

24  school personnel whose HIV tests are positive.

25         (6)  The department shall by February 1 of each year

26  submit to the Legislature an annual report relating to all

27  information obtained pursuant to this section.

28         (4)(7)  Each person who violates the provisions of this

29  section or the rules adopted hereunder may be fined by the

30  department up to $500 for each offense.  The department shall

31  report each violation of this section to the regulatory agency


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 1  responsible for licensing each health care professional and

 2  each laboratory to which these provisions apply.

 3         Section 3.  Section 384.31, Florida Statutes, is

 4  amended to read:

 5         384.31  Serological Testing of pregnant women; duty of

 6  the attendant.--

 7         (1)  Every person, including every physician licensed

 8  under chapter 458 or chapter 459 or midwife licensed under

 9  part I of chapter 464 or chapter 467, attending a pregnant

10  woman for conditions relating to pregnancy during the period

11  of gestation and delivery shall take or cause the woman to be

12  tested for sexually transmissible diseases, including HIV, as

13  taken a sample of venous blood at a time or times specified by

14  the department rule. Testing Each sample of blood shall be

15  performed tested by a laboratory approved for such purposes

16  under part I of chapter 483 for sexually transmissible

17  diseases as required by rule of the department. The woman

18  shall be informed of the tests that will be conducted and of

19  her right to refuse testing. If a woman objects to testing, a

20  written statement of objection, signed by the woman, shall be

21  placed in the woman's medical record and no testing shall

22  occur.

23         (2)  At the time the venous blood sample is taken,

24  testing for human immunodeficiency virus (HIV) infection shall

25  be offered to each pregnant woman. The prevailing professional

26  standard of care in this state requires each health care

27  provider and midwife who attends a pregnant woman to counsel

28  the woman to be tested for human immunodeficiency virus (HIV).

29  Counseling shall include a discussion of the availability of

30  treatment if the pregnant woman tests HIV positive. If a

31  pregnant woman objects to HIV testing, reasonable steps shall


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 1  be taken to obtain a written statement of such objection,

 2  signed by the patient, which shall be placed in the patient's

 3  medical record. Every person, including every physician

 4  licensed under chapter 458 or chapter 459 or midwife licensed

 5  under part I of chapter 464 or chapter 467, who attends a

 6  pregnant woman who has been offered and objects to HIV testing

 7  shall be immune from liability arising out of or related to

 8  the contracting of HIV infection or acquired immune deficiency

 9  syndrome (AIDS) by the child from the mother.

10         Section 4.  This act shall take effect upon becoming a

11  law.

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