HB 401

1
A bill to be entitled
2An act relating to the testing of inmates for HIV
3infection in certain county detention facilities; amending
4s. 951.27, F.S.; requiring the Department of Health to
5designate certain counties, if approved by the county's
6governing body, to participate in a program to test each
7inmate for HIV before the inmate is released if the
8inmate's HIV status is unknown; providing certain
9exceptions; requiring that certain county detention
10facilities notify the Department of Health and the county
11health department in the county where the inmate plans to
12reside following release if the inmate is HIV positive;
13requiring certain detention facilities to provide special
14transitional assistance to an inmate who is HIV positive;
15providing for immunity for complying entities; amending s.
16381.004, F.S.; providing that informed consent is not
17required for an HIV test of an inmate before the inmate's
18release from a municipal or county detention facility;
19providing an effective date.
20
21Be It Enacted by the Legislature of the State of Florida:
22
23     Section 1.  Section 951.27, Florida Statutes, is amended to
24read:
25     951.27  Blood tests of inmates.--
26     (1)  Each county and each municipal detention facility
27shall have a written procedure developed, in consultation with
28the facility medical provider, establishing conditions under
29which an inmate will be tested for infectious disease, including
30human immunodeficiency virus pursuant to s. 775.0877, which
31procedure is consistent with guidelines of the Centers for
32Disease Control and Prevention and recommendations of the
33Correctional Medical Authority. It is not unlawful for the
34person receiving the test results to divulge the test results to
35the sheriff or chief correctional officer.
36     (2)(a)  The Department of Health shall designate two
37counties having a population of 1.2 million or more and five
38counties having a population of fewer than 1.2 million to
39participate in the testing program provided in this subsection,
40if participation in the testing program is authorized by a
41majority of the county's governing body. Each county detention
42facility that lies within the authority of any participating
43county shall, consistent with s. 381.004(3), perform an HIV test
44as defined in s. 381.004(2) on each sentenced inmate who is to
45be released from the facility unless the facility knows that the
46inmate is HIV positive or unless, within 120 days before the
47release date, the inmate has been tested for HIV and does not
48request retesting. The required test must be performed not less
49than 30 days before the release date of the inmate. A test is
50not required under this paragraph if an inmate is released due
51to an emergency or a court order and the detention facility
52receives less than 30 days' notice of the release date or if the
53inmate is transferred to the custody of the Department of
54Corrections for incarceration in the state correctional system.
55     (b)  Each county detention facility in a county that
56participates in the testing program authorized in paragraph (a)
57must comply with the requirements of this paragraph. If the
58county detention facility knows that an inmate who is to be
59released from the facility is HIV positive or has received a
60positive HIV test result, that facility shall, before the inmate
61is released:
62     1.  Notify, consistent with s. 381.004(3), the Department
63of Health and the county health department in the county where
64the inmate being released plans to reside of the release date
65and HIV status of the inmate.
66     2.  Provide special transitional assistance to the inmate
67which must include:
68     a.  Education on preventing the transmission of HIV to
69others and on the importance of receiving followup medical care
70and treatment.
71     b.  A written, individualized discharge plan that includes
72records of all laboratory and diagnostic test results,
73medication and treatment information, and referrals to and
74contacts with the county health department and local primary
75medical care services for the treatment of HIV infection which
76are available in the area where the inmate plans to reside.
77     (3)(2)  Except as otherwise provided in this subsection,
78serologic blood test results obtained pursuant to subsection (1)
79or subsection (2) are confidential and exempt from the
80provisions of s. 119.07(1) and s. 24(a), Art. I of the State
81Constitution. However, such results may be provided to employees
82or officers of the sheriff or chief correctional officer who are
83responsible for the custody and care of the affected inmate and
84have a need to know such information, and as provided in ss.
85381.004(3), 775.0877, and 960.003. In addition, upon request of
86the victim or the victim's legal guardian, or the parent or
87legal guardian of the victim if the victim is a minor, the
88results of any HIV test performed on an inmate who has been
89arrested for any sexual offense involving oral, anal, or vaginal
90penetration by, or union with, the sexual organ of another,
91shall be disclosed to the victim or the victim's legal guardian,
92or to the parent or legal guardian of the victim if the victim
93is a minor. In such cases, the county or municipal detention
94facility shall furnish the test results to the Department of
95Health, which is responsible for disclosing the results to
96public health agencies as provided in s. 775.0877 and to the
97victim or the victim's legal guardian, or the parent or legal
98guardian of the victim if the victim is a minor, as provided in
99s. 960.003(3).
100     (4)(3)  The results of any serologic blood test on an
101inmate are a part of that inmate's permanent medical file. Upon
102transfer of the inmate to any other correctional facility, such
103file is also transferred, and all relevant authorized persons
104must be notified of positive HIV test results, as required in s.
105775.0877.
106     (5)  Notwithstanding any statute providing for a waiver of
107sovereign immunity, the state, its agencies, or subdivisions,
108and employees of the state, its agencies, or subdivisions, are
109not liable to any person for negligently causing death or
110personal injury arising out of complying with this section.
111     Section 2.  Subsection (3) of section 381.004, Florida
112Statutes, is amended to read:
113     381.004  HIV testing.--
114     (3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED
115CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--
116     (a)  No person in this state shall order a test designed to
117identify the human immunodeficiency virus, or its antigen or
118antibody, without first obtaining the informed consent of the
119person upon whom the test is being performed, except as
120specified in paragraph (h). Informed consent shall be preceded
121by an explanation of the right to confidential treatment of
122information identifying the subject of the test and the results
123of the test to the extent provided by law. Information shall
124also be provided on the fact that a positive HIV test result
125will be reported to the county health department with sufficient
126information to identify the test subject and on the availability
127and location of sites at which anonymous testing is performed.
128As required in paragraph (4)(c), each county health department
129shall maintain a list of sites at which anonymous testing is
130performed, including the locations, phone numbers, and hours of
131operation of the sites. Consent need not be in writing provided
132there is documentation in the medical record that the test has
133been explained and the consent has been obtained.
134     (b)  Except as provided in paragraph (h), informed consent
135must be obtained from a legal guardian or other person
136authorized by law when the person:
137     1.  Is not competent, is incapacitated, or is otherwise
138unable to make an informed judgment; or
139     2.  Has not reached the age of majority, except as provided
140in s. 384.30.
141     (c)  The person ordering the test or that person's designee
142shall ensure that all reasonable efforts are made to notify the
143test subject of his or her test result. Notification of a person
144with a positive test result shall include information on the
145availability of appropriate medical and support services, on the
146importance of notifying partners who may have been exposed, and
147on preventing transmission of HIV. Notification of a person with
148a negative test result shall include, as appropriate,
149information on preventing the transmission of HIV. When testing
150occurs in a hospital emergency department, detention facility,
151or other facility and the test subject has been released before
152being notified of positive test results, informing the county
153health department for that department to notify the test subject
154fulfills this responsibility.
155     (d)  A positive preliminary test result may not be revealed
156to any person except in the following situations:
157     1.  Preliminary test results may be released to licensed
158physicians or the medical or nonmedical personnel subject to the
159significant exposure for purposes of subparagraphs (h)10., 11.,
160and 12.
161     2.  Preliminary test results may be released to health care
162providers and to the person tested when decisions about medical
163care or treatment of, or recommendation to, the person tested
164and, in the case of an intrapartum or postpartum woman, when
165care, treatment, or recommendations regarding her newborn,
166cannot await the results of confirmatory testing. Positive
167preliminary HIV test results may not be characterized to the
168patient as a diagnosis of HIV infection. Justification for the
169use of preliminary test results must be documented in the
170medical record by the health care provider who ordered the test.
171     3.  The results of rapid testing technologies shall be
172considered preliminary and may be released in accordance with
173the manufacturer's instructions as approved by the federal Food
174and Drug Administration.
175     4.  Corroborating or confirmatory testing must be conducted
176as followup to a positive preliminary test. Results shall be
177communicated to the patient according to statute regardless of
178the outcome. Except as provided in this section, test results
179are confidential and exempt from the provisions of s. 119.07(1).
180     (e)  Except as provided in this section, the identity of
181any person upon whom a test has been performed and test results
182are confidential and exempt from the provisions of s. 119.07(1).
183No person who has obtained or has knowledge of a test result
184pursuant to this section may disclose or be compelled to
185disclose the identity of any person upon whom a test is
186performed, or the results of such a test in a manner which
187permits identification of the subject of the test, except to the
188following persons:
189     1.  The subject of the test or the subject's legally
190authorized representative.
191     2.  Any person, including third-party payors, designated in
192a legally effective release of the test results executed prior
193to or after the test by the subject of the test or the subject's
194legally authorized representative. The test subject may in
195writing authorize the disclosure of the test subject's HIV test
196results to third party payors, who need not be specifically
197identified, and to other persons to whom the test subject
198subsequently issues a general release of medical information. A
199general release without such prior written authorization is not
200sufficient to release HIV test results.
201     3.  An authorized agent or employee of a health facility or
202health care provider if the health facility or health care
203provider itself is authorized to obtain the test results, the
204agent or employee participates in the administration or
205provision of patient care or handles or processes specimens of
206body fluids or tissues, and the agent or employee has a need to
207know such information. The department shall adopt a rule
208defining which persons have a need to know pursuant to this
209subparagraph.
210     4.  Health care providers consulting between themselves or
211with health care facilities to determine diagnosis and
212treatment. For purposes of this subparagraph, health care
213providers shall include licensed health care professionals
214employed by or associated with state, county, or municipal
215detention facilities when such health care professionals are
216acting exclusively for the purpose of providing diagnoses or
217treatment of persons in the custody of such facilities.
218     5.  The department, in accordance with rules for reporting
219and controlling the spread of disease, as otherwise provided by
220state law.
221     6.  A health facility or health care provider which
222procures, processes, distributes, or uses:
223     a.  A human body part from a deceased person, with respect
224to medical information regarding that person; or
225     b.  Semen provided prior to July 6, 1988, for the purpose
226of artificial insemination.
227     7.  Health facility staff committees, for the purposes of
228conducting program monitoring, program evaluation, or service
229reviews pursuant to chapters 395 and 766.
230     8.  Authorized medical or epidemiological researchers who
231may not further disclose any identifying characteristics or
232information.
233     9.  A person allowed access by a court order which is
234issued in compliance with the following provisions:
235     a.  No court of this state shall issue such order unless
236the court finds that the person seeking the test results has
237demonstrated a compelling need for the test results which cannot
238be accommodated by other means. In assessing compelling need,
239the court shall weigh the need for disclosure against the
240privacy interest of the test subject and the public interest
241which may be disserved by disclosure which deters blood, organ,
242and semen donation and future human immunodeficiency virus-
243related testing or which may lead to discrimination. This
244paragraph shall not apply to blood bank donor records.
245     b.  Pleadings pertaining to disclosure of test results
246shall substitute a pseudonym for the true name of the subject of
247the test. The disclosure to the parties of the subject's true
248name shall be communicated confidentially in documents not filed
249with the court.
250     c.  Before granting any such order, the court shall provide
251the individual whose test result is in question with notice and
252a reasonable opportunity to participate in the proceedings if he
253or she is not already a party.
254     d.  Court proceedings as to disclosure of test results
255shall be conducted in camera, unless the subject of the test
256agrees to a hearing in open court or unless the court determines
257that a public hearing is necessary to the public interest and
258the proper administration of justice.
259     e.  Upon the issuance of an order to disclose test results,
260the court shall impose appropriate safeguards against
261unauthorized disclosure which shall specify the persons who may
262have access to the information, the purposes for which the
263information shall be used, and appropriate prohibitions on
264future disclosure.
265     10.  A person allowed access by order of a judge of
266compensation claims of the Division of Administrative Hearings.
267A judge of compensation claims shall not issue such order unless
268he or she finds that the person seeking the test results has
269demonstrated a compelling need for the test results which cannot
270be accommodated by other means.
271     11.  Those employees of the department or of child-placing
272or child-caring agencies or of family foster homes, licensed
273pursuant to s. 409.175, who are directly involved in the
274placement, care, control, or custody of such test subject and
275who have a need to know such information; adoptive parents of
276such test subject; or any adult custodian, any adult relative,
277or any person responsible for the child's welfare, if the test
278subject was not tested under subparagraph (b)2. and if a
279reasonable attempt has been made to locate and inform the legal
280guardian of a test result. The department shall adopt a rule to
281implement this subparagraph.
282     12.  Those employees of residential facilities or of
283community-based care programs that care for developmentally
284disabled persons, pursuant to chapter 393, who are directly
285involved in the care, control, or custody of such test subject
286and who have a need to know such information.
287     13.  A health care provider involved in the delivery of a
288child can note the mother's HIV test results in the child's
289medical record.
290     14.  Medical personnel or nonmedical personnel who have
291been subject to a significant exposure during the course of
292medical practice or in the performance of professional duties,
293or individuals who are the subject of the significant exposure
294as provided in subparagraphs (h)10.-12.
295     15.  The medical examiner shall disclose positive HIV test
296results to the department in accordance with rules for reporting
297and controlling the spread of disease.
298     (f)  Except as provided in this section, the identity of a
299person upon whom a test has been performed is confidential and
300exempt from the provisions of s. 119.07(1). No person to whom
301the results of a test have been disclosed may disclose the test
302results to another person except as authorized by this
303subsection and by ss. 951.27 and 960.003. Whenever disclosure is
304made pursuant to this subsection, it shall be accompanied by a
305statement in writing which includes the following or
306substantially similar language: "This information has been
307disclosed to you from records whose confidentiality is protected
308by state law. State law prohibits you from making any further
309disclosure of such information without the specific written
310consent of the person to whom such information pertains, or as
311otherwise permitted by state law. A general authorization for
312the release of medical or other information is NOT sufficient
313for this purpose." An oral disclosure shall be accompanied by
314oral notice and followed by a written notice within 10 days,
315except that this notice shall not be required for disclosures
316made pursuant to subparagraphs (e)3. and 4.
317     (g)  Human immunodeficiency virus test results contained in
318the medical records of a hospital licensed under chapter 395 may
319be released in accordance with s. 395.3025 without being subject
320to the requirements of subparagraph (e)2., subparagraph (e)9.,
321or paragraph (f); provided the hospital has obtained written
322informed consent for the HIV test in accordance with provisions
323of this section.
324     (h)  Notwithstanding the provisions of paragraph (a),
325informed consent is not required:
326     1.  When testing for sexually transmissible diseases is
327required by state or federal law, or by rule including the
328following situations:
329     a.  HIV testing pursuant to s. 796.08 of persons convicted
330of prostitution or of procuring another to commit prostitution.
331     b.  HIV testing of inmates pursuant to s. 945.355 prior to
332their release from prison by reason of parole, accumulation of
333gain-time credits, or expiration of sentence.
334     c.  Testing for HIV by a medical examiner in accordance
335with s. 406.11.
336     d.  HIV testing of pregnant women pursuant to s. 384.31.
337     e.  HIV testing of inmates pursuant to s. 951.27 before
338their release from a county or municipal detention facility.
339     2.  Those exceptions provided for blood, plasma, organs,
340skin, semen, or other human tissue pursuant to s. 381.0041.
341     3.  For the performance of an HIV-related test by licensed
342medical personnel in bona fide medical emergencies when the test
343results are necessary for medical diagnostic purposes to provide
344appropriate emergency care or treatment to the person being
345tested and the patient is unable to consent, as supported by
346documentation in the medical record. Notification of test
347results in accordance with paragraph (c) is required.
348     4.  For the performance of an HIV-related test by licensed
349medical personnel for medical diagnosis of acute illness where,
350in the opinion of the attending physician, obtaining informed
351consent would be detrimental to the patient, as supported by
352documentation in the medical record, and the test results are
353necessary for medical diagnostic purposes to provide appropriate
354care or treatment to the person being tested. Notification of
355test results in accordance with paragraph (c) is required if it
356would not be detrimental to the patient. This subparagraph does
357not authorize the routine testing of patients for HIV infection
358without informed consent.
359     5.  When HIV testing is performed as part of an autopsy for
360which consent was obtained pursuant to s. 872.04.
361     6.  For the performance of an HIV test upon a defendant
362pursuant to the victim's request in a prosecution for any type
363of sexual battery where a blood sample is taken from the
364defendant voluntarily, pursuant to court order for any purpose,
365or pursuant to the provisions of s. 775.0877, s. 951.27, or s.
366960.003; however, the results of any HIV test performed shall be
367disclosed solely to the victim and the defendant, except as
368provided in ss. 775.0877, 951.27, and 960.003.
369     7.  When an HIV test is mandated by court order.
370     8.  For epidemiological research pursuant to s. 381.0032,
371for research consistent with institutional review boards created
372by 45 C.F.R. part 46, or for the performance of an HIV-related
373test for the purpose of research, if the testing is performed in
374a manner by which the identity of the test subject is not known
375and may not be retrieved by the researcher.
376     9.  When human tissue is collected lawfully without the
377consent of the donor for corneal removal as authorized by s.
378765.5185 or enucleation of the eyes as authorized by s. 765.519.
379     10.  For the performance of an HIV test upon an individual
380who comes into contact with medical personnel in such a way that
381a significant exposure has occurred during the course of
382employment or within the scope of practice and where a blood
383sample is available that was taken from that individual
384voluntarily by medical personnel for other purposes. The term
385"medical personnel" includes a licensed or certified health care
386professional; an employee of a health care professional or
387health care facility; employees of a laboratory licensed under
388chapter 483; personnel of a blood bank or plasma center; a
389medical student or other student who is receiving training as a
390health care professional at a health care facility; and a
391paramedic or emergency medical technician certified by the
392department to perform life-support procedures under s. 401.23.
393     a.  Prior to performance of an HIV test on a voluntarily
394obtained blood sample, the individual from whom the blood was
395obtained shall be requested to consent to the performance of the
396test and to the release of the results. The individual's refusal
397to consent and all information concerning the performance of an
398HIV test and any HIV test result shall be documented only in the
399medical personnel's record unless the individual gives written
400consent to entering this information on the individual's medical
401record.
402     b.  Reasonable attempts to locate the individual and to
403obtain consent shall be made, and all attempts must be
404documented. If the individual cannot be found, an HIV test may
405be conducted on the available blood sample. If the individual
406does not voluntarily consent to the performance of an HIV test,
407the individual shall be informed that an HIV test will be
408performed, and counseling shall be furnished as provided in this
409section. However, HIV testing shall be conducted only after a
410licensed physician documents, in the medical record of the
411medical personnel, that there has been a significant exposure
412and that, in the physician's medical judgment, the information
413is medically necessary to determine the course of treatment for
414the medical personnel.
415     c.  Costs of any HIV test of a blood sample performed with
416or without the consent of the individual, as provided in this
417subparagraph, shall be borne by the medical personnel or the
418employer of the medical personnel. However, costs of testing or
419treatment not directly related to the initial HIV tests or costs
420of subsequent testing or treatment may not be borne by the
421medical personnel or the employer of the medical personnel.
422     d.  In order to utilize the provisions of this
423subparagraph, the medical personnel must either be tested for
424HIV pursuant to this section or provide the results of an HIV
425test taken within 6 months prior to the significant exposure if
426such test results are negative.
427     e.  A person who receives the results of an HIV test
428pursuant to this subparagraph shall maintain the confidentiality
429of the information received and of the persons tested. Such
430confidential information is exempt from s. 119.07(1).
431     f.  If the source of the exposure will not voluntarily
432submit to HIV testing and a blood sample is not available, the
433medical personnel or the employer of such person acting on
434behalf of the employee may seek a court order directing the
435source of the exposure to submit to HIV testing. A sworn
436statement by a physician licensed under chapter 458 or chapter
437459 that a significant exposure has occurred and that, in the
438physician's medical judgment, testing is medically necessary to
439determine the course of treatment constitutes probable cause for
440the issuance of an order by the court. The results of the test
441shall be released to the source of the exposure and to the
442person who experienced the exposure.
443     11.  For the performance of an HIV test upon an individual
444who comes into contact with medical personnel in such a way that
445a significant exposure has occurred during the course of
446employment or within the scope of practice of the medical
447personnel while the medical personnel provides emergency medical
448treatment to the individual; or who comes into contact with
449nonmedical personnel in such a way that a significant exposure
450has occurred while the nonmedical personnel provides emergency
451medical assistance during a medical emergency. For the purposes
452of this subparagraph, a medical emergency means an emergency
453medical condition outside of a hospital or health care facility
454that provides physician care. The test may be performed only
455during the course of treatment for the medical emergency.
456     a.  An individual who is capable of providing consent shall
457be requested to consent to an HIV test prior to the testing. The
458individual's refusal to consent, and all information concerning
459the performance of an HIV test and its result, shall be
460documented only in the medical personnel's record unless the
461individual gives written consent to entering this information on
462the individual's medical record.
463     b.  HIV testing shall be conducted only after a licensed
464physician documents, in the medical record of the medical
465personnel or nonmedical personnel, that there has been a
466significant exposure and that, in the physician's medical
467judgment, the information is medically necessary to determine
468the course of treatment for the medical personnel or nonmedical
469personnel.
470     c.  Costs of any HIV test performed with or without the
471consent of the individual, as provided in this subparagraph,
472shall be borne by the medical personnel or the employer of the
473medical personnel or nonmedical personnel. However, costs of
474testing or treatment not directly related to the initial HIV
475tests or costs of subsequent testing or treatment may not be
476borne by the medical personnel or the employer of the medical
477personnel or nonmedical personnel.
478     d.  In order to utilize the provisions of this
479subparagraph, the medical personnel or nonmedical personnel
480shall be tested for HIV pursuant to this section or shall
481provide the results of an HIV test taken within 6 months prior
482to the significant exposure if such test results are negative.
483     e.  A person who receives the results of an HIV test
484pursuant to this subparagraph shall maintain the confidentiality
485of the information received and of the persons tested. Such
486confidential information is exempt from s. 119.07(1).
487     f.  If the source of the exposure will not voluntarily
488submit to HIV testing and a blood sample was not obtained during
489treatment for the medical emergency, the medical personnel, the
490employer of the medical personnel acting on behalf of the
491employee, or the nonmedical personnel may seek a court order
492directing the source of the exposure to submit to HIV testing. A
493sworn statement by a physician licensed under chapter 458 or
494chapter 459 that a significant exposure has occurred and that,
495in the physician's medical judgment, testing is medically
496necessary to determine the course of treatment constitutes
497probable cause for the issuance of an order by the court. The
498results of the test shall be released to the source of the
499exposure and to the person who experienced the exposure.
500     12.  For the performance of an HIV test by the medical
501examiner or attending physician upon an individual who expired
502or could not be resuscitated while receiving emergency medical
503assistance or care and who was the source of a significant
504exposure to medical or nonmedical personnel providing such
505assistance or care.
506     a.  HIV testing may be conducted only after a licensed
507physician documents in the medical record of the medical
508personnel or nonmedical personnel that there has been a
509significant exposure and that, in the physician's medical
510judgment, the information is medically necessary to determine
511the course of treatment for the medical personnel or nonmedical
512personnel.
513     b.  Costs of any HIV test performed under this subparagraph
514may not be charged to the deceased or to the family of the
515deceased person.
516     c.  For the provisions of this subparagraph to be
517applicable, the medical personnel or nonmedical personnel must
518be tested for HIV under this section or must provide the results
519of an HIV test taken within 6 months before the significant
520exposure if such test results are negative.
521     d.  A person who receives the results of an HIV test
522pursuant to this subparagraph shall comply with paragraph (e).
523     13.  For the performance of an HIV-related test medically
524indicated by licensed medical personnel for medical diagnosis of
525a hospitalized infant as necessary to provide appropriate care
526and treatment of the infant when, after a reasonable attempt, a
527parent cannot be contacted to provide consent. The medical
528records of the infant shall reflect the reason consent of the
529parent was not initially obtained. Test results shall be
530provided to the parent when the parent is located.
531     14.  For the performance of HIV testing conducted to
532monitor the clinical progress of a patient previously diagnosed
533to be HIV positive.
534     15.  For the performance of repeated HIV testing conducted
535to monitor possible conversion from a significant exposure.
536     Section 3.  This act shall take effect July 1, 2007.


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