HB 463

1
A bill to be entitled
2An act relating to the testing of inmates for HIV
3infection in county and municipal detention facilities;
4amending s. 951.27, F.S.; authorizing counties and
5municipalities to participate in a program to test each
6inmate for HIV before the inmate is released if the
7inmate's HIV status is unknown; providing certain
8exceptions; requiring that county and municipal detention
9facilities notify the Department of Health and the county
10health department in the county where the inmate plans to
11reside following release if the inmate is HIV positive;
12requiring the detention facilities to provide special
13transitional assistance to an inmate who is HIV positive;
14providing for immunity for complying entities; amending s.
15381.004, F.S.; providing that informed consent is not
16required for an HIV test of an inmate before the inmate's
17release from a municipal or county detention facility;
18providing an effective date.
19
20Be It Enacted by the Legislature of the State of Florida:
21
22     Section 1.  Section 951.27, Florida Statutes, is amended to
23read:
24     951.27  Blood tests of inmates.--
25     (1)  Each county and each municipal detention facility
26shall have a written procedure developed, in consultation with
27the facility medical provider, establishing conditions under
28which an inmate will be tested for infectious disease, including
29human immunodeficiency virus pursuant to s. 775.0877, which
30procedure is consistent with guidelines of the Centers for
31Disease Control and Prevention and recommendations of the
32Correctional Medical Authority. It is not unlawful for the
33person receiving the test results to divulge the test results to
34the sheriff or chief correctional officer.
35     (2)(a)  Each county or municipality has the local option,
36if authorized by a majority of the respective county's or
37municipality's governing body, to participate in the testing
38program provided in this subsection. The county or municipal
39detention facility that lies within the authority of any
40participating county or municipality shall, consistent with s.
41381.004(3), perform an HIV test as defined in s. 381.004(2) on
42each inmate who is to be released from the facility unless the
43facility knows that the inmate is HIV positive or unless, within
44120 days before the release date, the inmate has been tested for
45HIV and does not request retesting. The required test must be
46performed not less than 30 days before the release date of the
47inmate. A test is not required under this paragraph if an inmate
48is released due to an emergency or a court order and the
49detention facility receives less than 30 days' notice of the
50release date or if the inmate is transferred to the custody of
51the Department of Corrections for incarceration in the state
52correctional system.
53     (b)  If the county or municipal detention facility knows
54that an inmate who is to be released from the facility is HIV
55positive or has received a positive HIV test result, that
56facility shall, before the inmate is released:
57     1.  Notify, consistent with s. 381.004(3), the Department
58of Health and the county health department in the county where
59the inmate being released plans to reside of the release date
60and HIV status of the inmate.
61     2.  Provide special transitional assistance to the inmate,
62which must include:
63     a.  Education on preventing the transmission of HIV to
64others and on the importance of receiving followup medical care
65and treatment.
66     b.  A written, individualized discharge plan that includes
67records of all laboratory and diagnostic test results,
68medication and treatment information, and referrals to and
69contacts with the county health department and local primary
70medical care services for the treatment of HIV infection which
71are available in the area where the inmate plans to reside.
72     (3)(2)  Except as otherwise provided in this subsection,
73serologic blood test results obtained pursuant to subsection (1)
74or subsection (2) are confidential and exempt from the
75provisions of s. 119.07(1) and s. 24(a), Art. I of the State
76Constitution. However, such results may be provided to employees
77or officers of the sheriff or chief correctional officer who are
78responsible for the custody and care of the affected inmate and
79have a need to know such information, and as provided in ss.
80381.004(3), 775.0877, and 960.003. In addition, upon request of
81the victim or the victim's legal guardian, or the parent or
82legal guardian of the victim if the victim is a minor, the
83results of any HIV test performed on an inmate who has been
84arrested for any sexual offense involving oral, anal, or vaginal
85penetration by, or union with, the sexual organ of another,
86shall be disclosed to the victim or the victim's legal guardian,
87or to the parent or legal guardian of the victim if the victim
88is a minor. In such cases, the county or municipal detention
89facility shall furnish the test results to the Department of
90Health, which is responsible for disclosing the results to
91public health agencies as provided in s. 775.0877 and to the
92victim or the victim's legal guardian, or the parent or legal
93guardian of the victim if the victim is a minor, as provided in
94s. 960.003(3).
95     (4)(3)  The results of any serologic blood test on an
96inmate are a part of that inmate's permanent medical file. Upon
97transfer of the inmate to any other correctional facility, such
98file is also transferred, and all relevant authorized persons
99must be notified of positive HIV test results, as required in s.
100775.0877.
101     (5)  Notwithstanding any statute providing for a waiver of
102sovereign immunity, the state, its agencies, or subdivisions,
103and employees of the state, its agencies, or subdivisions, are
104not liable to any person for negligently causing death or
105personal injury arising out of complying with this section.
106     Section 2.  Subsection (3) of section 381.004, Florida
107Statutes, is amended to read:
108     381.004  HIV testing.--
109     (3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED
110CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--
111     (a)  No person in this state shall order a test designed to
112identify the human immunodeficiency virus, or its antigen or
113antibody, without first obtaining the informed consent of the
114person upon whom the test is being performed, except as
115specified in paragraph (h). Informed consent shall be preceded
116by an explanation of the right to confidential treatment of
117information identifying the subject of the test and the results
118of the test to the extent provided by law. Information shall
119also be provided on the fact that a positive HIV test result
120will be reported to the county health department with sufficient
121information to identify the test subject and on the availability
122and location of sites at which anonymous testing is performed.
123As required in paragraph (4)(c), each county health department
124shall maintain a list of sites at which anonymous testing is
125performed, including the locations, phone numbers, and hours of
126operation of the sites. Consent need not be in writing provided
127there is documentation in the medical record that the test has
128been explained and the consent has been obtained.
129     (b)  Except as provided in paragraph (h), informed consent
130must be obtained from a legal guardian or other person
131authorized by law when the person:
132     1.  Is not competent, is incapacitated, or is otherwise
133unable to make an informed judgment; or
134     2.  Has not reached the age of majority, except as provided
135in s. 384.30.
136     (c)  The person ordering the test or that person's designee
137shall ensure that all reasonable efforts are made to notify the
138test subject of his or her test result. Notification of a person
139with a positive test result shall include information on the
140availability of appropriate medical and support services, on the
141importance of notifying partners who may have been exposed, and
142on preventing transmission of HIV. Notification of a person with
143a negative test result shall include, as appropriate,
144information on preventing the transmission of HIV. When testing
145occurs in a hospital emergency department, detention facility,
146or other facility and the test subject has been released before
147being notified of positive test results, informing the county
148health department for that department to notify the test subject
149fulfills this responsibility.
150     (d)  A positive preliminary test result may not be revealed
151to any person except in the following situations:
152     1.  Preliminary test results may be released to licensed
153physicians or the medical or nonmedical personnel subject to the
154significant exposure for purposes of subparagraphs (h)10., 11.,
155and 12.
156     2.  Preliminary test results may be released to health care
157providers and to the person tested when decisions about medical
158care or treatment of, or recommendation to, the person tested
159and, in the case of an intrapartum or postpartum woman, when
160care, treatment, or recommendations regarding her newborn,
161cannot await the results of confirmatory testing. Positive
162preliminary HIV test results may not be characterized to the
163patient as a diagnosis of HIV infection. Justification for the
164use of preliminary test results must be documented in the
165medical record by the health care provider who ordered the test.
166     3.  The results of rapid testing technologies shall be
167considered preliminary and may be released in accordance with
168the manufacturer's instructions as approved by the federal Food
169and Drug Administration.
170     4.  Corroborating or confirmatory testing must be conducted
171as followup to a positive preliminary test. Results shall be
172communicated to the patient according to statute regardless of
173the outcome. Except as provided in this section, test results
174are confidential and exempt from the provisions of s. 119.07(1).
175     (e)  Except as provided in this section, the identity of
176any person upon whom a test has been performed and test results
177are confidential and exempt from the provisions of s. 119.07(1).
178No person who has obtained or has knowledge of a test result
179pursuant to this section may disclose or be compelled to
180disclose the identity of any person upon whom a test is
181performed, or the results of such a test in a manner which
182permits identification of the subject of the test, except to the
183following persons:
184     1.  The subject of the test or the subject's legally
185authorized representative.
186     2.  Any person, including third-party payors, designated in
187a legally effective release of the test results executed prior
188to or after the test by the subject of the test or the subject's
189legally authorized representative. The test subject may in
190writing authorize the disclosure of the test subject's HIV test
191results to third party payors, who need not be specifically
192identified, and to other persons to whom the test subject
193subsequently issues a general release of medical information. A
194general release without such prior written authorization is not
195sufficient to release HIV test results.
196     3.  An authorized agent or employee of a health facility or
197health care provider if the health facility or health care
198provider itself is authorized to obtain the test results, the
199agent or employee participates in the administration or
200provision of patient care or handles or processes specimens of
201body fluids or tissues, and the agent or employee has a need to
202know such information. The department shall adopt a rule
203defining which persons have a need to know pursuant to this
204subparagraph.
205     4.  Health care providers consulting between themselves or
206with health care facilities to determine diagnosis and
207treatment. For purposes of this subparagraph, health care
208providers shall include licensed health care professionals
209employed by or associated with state, county, or municipal
210detention facilities when such health care professionals are
211acting exclusively for the purpose of providing diagnoses or
212treatment of persons in the custody of such facilities.
213     5.  The department, in accordance with rules for reporting
214and controlling the spread of disease, as otherwise provided by
215state law.
216     6.  A health facility or health care provider which
217procures, processes, distributes, or uses:
218     a.  A human body part from a deceased person, with respect
219to medical information regarding that person; or
220     b.  Semen provided prior to July 6, 1988, for the purpose
221of artificial insemination.
222     7.  Health facility staff committees, for the purposes of
223conducting program monitoring, program evaluation, or service
224reviews pursuant to chapters 395 and 766.
225     8.  Authorized medical or epidemiological researchers who
226may not further disclose any identifying characteristics or
227information.
228     9.  A person allowed access by a court order which is
229issued in compliance with the following provisions:
230     a.  No court of this state shall issue such order unless
231the court finds that the person seeking the test results has
232demonstrated a compelling need for the test results which cannot
233be accommodated by other means. In assessing compelling need,
234the court shall weigh the need for disclosure against the
235privacy interest of the test subject and the public interest
236which may be disserved by disclosure which deters blood, organ,
237and semen donation and future human immunodeficiency virus-
238related testing or which may lead to discrimination. This
239paragraph shall not apply to blood bank donor records.
240     b.  Pleadings pertaining to disclosure of test results
241shall substitute a pseudonym for the true name of the subject of
242the test. The disclosure to the parties of the subject's true
243name shall be communicated confidentially in documents not filed
244with the court.
245     c.  Before granting any such order, the court shall provide
246the individual whose test result is in question with notice and
247a reasonable opportunity to participate in the proceedings if he
248or she is not already a party.
249     d.  Court proceedings as to disclosure of test results
250shall be conducted in camera, unless the subject of the test
251agrees to a hearing in open court or unless the court determines
252that a public hearing is necessary to the public interest and
253the proper administration of justice.
254     e.  Upon the issuance of an order to disclose test results,
255the court shall impose appropriate safeguards against
256unauthorized disclosure which shall specify the persons who may
257have access to the information, the purposes for which the
258information shall be used, and appropriate prohibitions on
259future disclosure.
260     10.  A person allowed access by order of a judge of
261compensation claims of the Division of Administrative Hearings.
262A judge of compensation claims shall not issue such order unless
263he or she finds that the person seeking the test results has
264demonstrated a compelling need for the test results which cannot
265be accommodated by other means.
266     11.  Those employees of the department or of child-placing
267or child-caring agencies or of family foster homes, licensed
268pursuant to s. 409.175, who are directly involved in the
269placement, care, control, or custody of such test subject and
270who have a need to know such information; adoptive parents of
271such test subject; or any adult custodian, any adult relative,
272or any person responsible for the child's welfare, if the test
273subject was not tested under subparagraph (b)2. and if a
274reasonable attempt has been made to locate and inform the legal
275guardian of a test result. The department shall adopt a rule to
276implement this subparagraph.
277     12.  Those employees of residential facilities or of
278community-based care programs that care for developmentally
279disabled persons, pursuant to chapter 393, who are directly
280involved in the care, control, or custody of such test subject
281and who have a need to know such information.
282     13.  A health care provider involved in the delivery of a
283child can note the mother's HIV test results in the child's
284medical record.
285     14.  Medical personnel or nonmedical personnel who have
286been subject to a significant exposure during the course of
287medical practice or in the performance of professional duties,
288or individuals who are the subject of the significant exposure
289as provided in subparagraphs (h)10.-12.
290     15.  The medical examiner shall disclose positive HIV test
291results to the department in accordance with rules for reporting
292and controlling the spread of disease.
293     (f)  Except as provided in this section, the identity of a
294person upon whom a test has been performed is confidential and
295exempt from the provisions of s. 119.07(1). No person to whom
296the results of a test have been disclosed may disclose the test
297results to another person except as authorized by this
298subsection and by ss. 951.27 and 960.003. Whenever disclosure is
299made pursuant to this subsection, it shall be accompanied by a
300statement in writing which includes the following or
301substantially similar language: "This information has been
302disclosed to you from records whose confidentiality is protected
303by state law. State law prohibits you from making any further
304disclosure of such information without the specific written
305consent of the person to whom such information pertains, or as
306otherwise permitted by state law. A general authorization for
307the release of medical or other information is NOT sufficient
308for this purpose." An oral disclosure shall be accompanied by
309oral notice and followed by a written notice within 10 days,
310except that this notice shall not be required for disclosures
311made pursuant to subparagraphs (e)3. and 4.
312     (g)  Human immunodeficiency virus test results contained in
313the medical records of a hospital licensed under chapter 395 may
314be released in accordance with s. 395.3025 without being subject
315to the requirements of subparagraph (e)2., subparagraph (e)9.,
316or paragraph (f); provided the hospital has obtained written
317informed consent for the HIV test in accordance with provisions
318of this section.
319     (h)  Notwithstanding the provisions of paragraph (a),
320informed consent is not required:
321     1.  When testing for sexually transmissible diseases is
322required by state or federal law, or by rule including the
323following situations:
324     a.  HIV testing pursuant to s. 796.08 of persons convicted
325of prostitution or of procuring another to commit prostitution.
326     b.  HIV testing of inmates pursuant to s. 945.355 prior to
327their release from prison by reason of parole, accumulation of
328gain-time credits, or expiration of sentence.
329     c.  Testing for HIV by a medical examiner in accordance
330with s. 406.11.
331     d.  HIV testing of pregnant women pursuant to s. 384.31.
332     e.  HIV testing of inmates pursuant to s. 951.27 before
333their release from a county or municipal detention facility.
334     2.  Those exceptions provided for blood, plasma, organs,
335skin, semen, or other human tissue pursuant to s. 381.0041.
336     3.  For the performance of an HIV-related test by licensed
337medical personnel in bona fide medical emergencies when the test
338results are necessary for medical diagnostic purposes to provide
339appropriate emergency care or treatment to the person being
340tested and the patient is unable to consent, as supported by
341documentation in the medical record. Notification of test
342results in accordance with paragraph (c) is required.
343     4.  For the performance of an HIV-related test by licensed
344medical personnel for medical diagnosis of acute illness where,
345in the opinion of the attending physician, obtaining informed
346consent would be detrimental to the patient, as supported by
347documentation in the medical record, and the test results are
348necessary for medical diagnostic purposes to provide appropriate
349care or treatment to the person being tested. Notification of
350test results in accordance with paragraph (c) is required if it
351would not be detrimental to the patient. This subparagraph does
352not authorize the routine testing of patients for HIV infection
353without informed consent.
354     5.  When HIV testing is performed as part of an autopsy for
355which consent was obtained pursuant to s. 872.04.
356     6.  For the performance of an HIV test upon a defendant
357pursuant to the victim's request in a prosecution for any type
358of sexual battery where a blood sample is taken from the
359defendant voluntarily, pursuant to court order for any purpose,
360or pursuant to the provisions of s. 775.0877, s. 951.27, or s.
361960.003; however, the results of any HIV test performed shall be
362disclosed solely to the victim and the defendant, except as
363provided in ss. 775.0877, 951.27, and 960.003.
364     7.  When an HIV test is mandated by court order.
365     8.  For epidemiological research pursuant to s. 381.0032,
366for research consistent with institutional review boards created
367by 45 C.F.R. part 46, or for the performance of an HIV-related
368test for the purpose of research, if the testing is performed in
369a manner by which the identity of the test subject is not known
370and may not be retrieved by the researcher.
371     9.  When human tissue is collected lawfully without the
372consent of the donor for corneal removal as authorized by s.
373765.5185 or enucleation of the eyes as authorized by s. 765.519.
374     10.  For the performance of an HIV test upon an individual
375who comes into contact with medical personnel in such a way that
376a significant exposure has occurred during the course of
377employment or within the scope of practice and where a blood
378sample is available that was taken from that individual
379voluntarily by medical personnel for other purposes. The term
380"medical personnel" includes a licensed or certified health care
381professional; an employee of a health care professional or
382health care facility; employees of a laboratory licensed under
383chapter 483; personnel of a blood bank or plasma center; a
384medical student or other student who is receiving training as a
385health care professional at a health care facility; and a
386paramedic or emergency medical technician certified by the
387department to perform life-support procedures under s. 401.23.
388     a.  Prior to performance of an HIV test on a voluntarily
389obtained blood sample, the individual from whom the blood was
390obtained shall be requested to consent to the performance of the
391test and to the release of the results. The individual's refusal
392to consent and all information concerning the performance of an
393HIV test and any HIV test result shall be documented only in the
394medical personnel's record unless the individual gives written
395consent to entering this information on the individual's medical
396record.
397     b.  Reasonable attempts to locate the individual and to
398obtain consent shall be made, and all attempts must be
399documented. If the individual cannot be found, an HIV test may
400be conducted on the available blood sample. If the individual
401does not voluntarily consent to the performance of an HIV test,
402the individual shall be informed that an HIV test will be
403performed, and counseling shall be furnished as provided in this
404section. However, HIV testing shall be conducted only after a
405licensed physician documents, in the medical record of the
406medical personnel, that there has been a significant exposure
407and that, in the physician's medical judgment, the information
408is medically necessary to determine the course of treatment for
409the medical personnel.
410     c.  Costs of any HIV test of a blood sample performed with
411or without the consent of the individual, as provided in this
412subparagraph, shall be borne by the medical personnel or the
413employer of the medical personnel. However, costs of testing or
414treatment not directly related to the initial HIV tests or costs
415of subsequent testing or treatment may not be borne by the
416medical personnel or the employer of the medical personnel.
417     d.  In order to utilize the provisions of this
418subparagraph, the medical personnel must either be tested for
419HIV pursuant to this section or provide the results of an HIV
420test taken within 6 months prior to the significant exposure if
421such test results are negative.
422     e.  A person who receives the results of an HIV test
423pursuant to this subparagraph shall maintain the confidentiality
424of the information received and of the persons tested. Such
425confidential information is exempt from s. 119.07(1).
426     f.  If the source of the exposure will not voluntarily
427submit to HIV testing and a blood sample is not available, the
428medical personnel or the employer of such person acting on
429behalf of the employee may seek a court order directing the
430source of the exposure to submit to HIV testing. A sworn
431statement by a physician licensed under chapter 458 or chapter
432459 that a significant exposure has occurred and that, in the
433physician's medical judgment, testing is medically necessary to
434determine the course of treatment constitutes probable cause for
435the issuance of an order by the court. The results of the test
436shall be released to the source of the exposure and to the
437person who experienced the exposure.
438     11.  For the performance of an HIV test upon an individual
439who comes into contact with medical personnel in such a way that
440a significant exposure has occurred during the course of
441employment or within the scope of practice of the medical
442personnel while the medical personnel provides emergency medical
443treatment to the individual; or who comes into contact with
444nonmedical personnel in such a way that a significant exposure
445has occurred while the nonmedical personnel provides emergency
446medical assistance during a medical emergency. For the purposes
447of this subparagraph, a medical emergency means an emergency
448medical condition outside of a hospital or health care facility
449that provides physician care. The test may be performed only
450during the course of treatment for the medical emergency.
451     a.  An individual who is capable of providing consent shall
452be requested to consent to an HIV test prior to the testing. The
453individual's refusal to consent, and all information concerning
454the performance of an HIV test and its result, shall be
455documented only in the medical personnel's record unless the
456individual gives written consent to entering this information on
457the individual's medical record.
458     b.  HIV testing shall be conducted only after a licensed
459physician documents, in the medical record of the medical
460personnel or nonmedical personnel, that there has been a
461significant exposure and that, in the physician's medical
462judgment, the information is medically necessary to determine
463the course of treatment for the medical personnel or nonmedical
464personnel.
465     c.  Costs of any HIV test performed with or without the
466consent of the individual, as provided in this subparagraph,
467shall be borne by the medical personnel or the employer of the
468medical personnel or nonmedical personnel. However, costs of
469testing or treatment not directly related to the initial HIV
470tests or costs of subsequent testing or treatment may not be
471borne by the medical personnel or the employer of the medical
472personnel or nonmedical personnel.
473     d.  In order to utilize the provisions of this
474subparagraph, the medical personnel or nonmedical personnel
475shall be tested for HIV pursuant to this section or shall
476provide the results of an HIV test taken within 6 months prior
477to the significant exposure if such test results are negative.
478     e.  A person who receives the results of an HIV test
479pursuant to this subparagraph shall maintain the confidentiality
480of the information received and of the persons tested. Such
481confidential information is exempt from s. 119.07(1).
482     f.  If the source of the exposure will not voluntarily
483submit to HIV testing and a blood sample was not obtained during
484treatment for the medical emergency, the medical personnel, the
485employer of the medical personnel acting on behalf of the
486employee, or the nonmedical personnel may seek a court order
487directing the source of the exposure to submit to HIV testing. A
488sworn statement by a physician licensed under chapter 458 or
489chapter 459 that a significant exposure has occurred and that,
490in the physician's medical judgment, testing is medically
491necessary to determine the course of treatment constitutes
492probable cause for the issuance of an order by the court. The
493results of the test shall be released to the source of the
494exposure and to the person who experienced the exposure.
495     12.  For the performance of an HIV test by the medical
496examiner or attending physician upon an individual who expired
497or could not be resuscitated while receiving emergency medical
498assistance or care and who was the source of a significant
499exposure to medical or nonmedical personnel providing such
500assistance or care.
501     a.  HIV testing may be conducted only after a licensed
502physician documents in the medical record of the medical
503personnel or nonmedical personnel that there has been a
504significant exposure and that, in the physician's medical
505judgment, the information is medically necessary to determine
506the course of treatment for the medical personnel or nonmedical
507personnel.
508     b.  Costs of any HIV test performed under this subparagraph
509may not be charged to the deceased or to the family of the
510deceased person.
511     c.  For the provisions of this subparagraph to be
512applicable, the medical personnel or nonmedical personnel must
513be tested for HIV under this section or must provide the results
514of an HIV test taken within 6 months before the significant
515exposure if such test results are negative.
516     d.  A person who receives the results of an HIV test
517pursuant to this subparagraph shall comply with paragraph (e).
518     13.  For the performance of an HIV-related test medically
519indicated by licensed medical personnel for medical diagnosis of
520a hospitalized infant as necessary to provide appropriate care
521and treatment of the infant when, after a reasonable attempt, a
522parent cannot be contacted to provide consent. The medical
523records of the infant shall reflect the reason consent of the
524parent was not initially obtained. Test results shall be
525provided to the parent when the parent is located.
526     14.  For the performance of HIV testing conducted to
527monitor the clinical progress of a patient previously diagnosed
528to be HIV positive.
529     15.  For the performance of repeated HIV testing conducted
530to monitor possible conversion from a significant exposure.
531     Section 3.  This act shall take effect July 1, 2006.


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