HB 969

1	A bill to be entitled
2	An act relating to HIV testing of inmates; amending s.
3	945.355, F.S.; requiring testing of an inmate promptly
4	upon the inmate's acceptance into the state correctional
5	system; amending s. 381.004, F.S.; conforming a provision;
6	providing an effective date.
7
8	Be It Enacted by the Legislature of the State of Florida:
9
10	Section 1.  Subsection (2) of section 945.355, Florida
11	Statutes, is amended to read:
12	945.355  HIV testing of inmates prior to release.--
13	(2)  If an inmate's HIV status is unknown to the
14	department, the department shall, pursuant to s. 381.004(3),
15	perform an HIV test on the inmate:
16	(a)  Promptly upon the inmate's acceptance into the state
17	correctional system.
18	(b)  Not less than 60 days prior to the inmate's
19	presumptive release date from prison by reason of parole,
20	accumulation of gain-time credits, or expiration of sentence. An
21	inmate who is known to the department to be HIV positive or who
22	has been tested within the previous year and does not request
23	retesting need not be tested under this paragraph section but is
24	subject to subsections (4) and (5). However, an inmate who is
25	released due to an emergency is exempt from the provisions of
26	this paragraph and subsections (4) and (5) section.
27	Section 2.  Paragraph (h) of subsection (3) of section
28	381.004, Florida Statutes, is amended to read:
29	381.004  HIV testing.--
30	(3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED
31	CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--
32	(h)  Notwithstanding the provisions of paragraph (a),
33	informed consent is not required:
34	1.  When testing for sexually transmissible diseases is
35	required by state or federal law, or by rule including the
36	following situations:
37	a.  HIV testing pursuant to s. 796.08 of persons convicted
38	of prostitution or of procuring another to commit prostitution.
39	b.  HIV testing of inmates pursuant to s. 945.355 upon
40	their acceptance into the state correctional system or prior to
41	their release from prison by reason of parole, accumulation of
42	gain-time credits, or expiration of sentence.
43	c.  Testing for HIV by a medical examiner in accordance
44	with s. 406.11.
45	d.  HIV testing of pregnant women pursuant to s. 384.31.
46	2.  Those exceptions provided for blood, plasma, organs,
47	skin, semen, or other human tissue pursuant to s. 381.0041.
48	3.  For the performance of an HIV-related test by licensed
49	medical personnel in bona fide medical emergencies when the test
50	results are necessary for medical diagnostic purposes to provide
51	appropriate emergency care or treatment to the person being
52	tested and the patient is unable to consent, as supported by
53	documentation in the medical record. Notification of test
54	results in accordance with paragraph (c) is required.
55	4.  For the performance of an HIV-related test by licensed
56	medical personnel for medical diagnosis of acute illness where,
57	in the opinion of the attending physician, obtaining informed
58	consent would be detrimental to the patient, as supported by
59	documentation in the medical record, and the test results are
60	necessary for medical diagnostic purposes to provide appropriate
61	care or treatment to the person being tested. Notification of
62	test results in accordance with paragraph (c) is required if it
63	would not be detrimental to the patient. This subparagraph does
64	not authorize the routine testing of patients for HIV infection
65	without informed consent.
66	5.  When HIV testing is performed as part of an autopsy for
67	which consent was obtained pursuant to s. 872.04.
68	6.  For the performance of an HIV test upon a defendant
69	pursuant to the victim's request in a prosecution for any type
70	of sexual battery where a blood sample is taken from the
71	defendant voluntarily, pursuant to court order for any purpose,
72	or pursuant to the provisions of s. 775.0877, s. 951.27, or s.
73	960.003; however, the results of any HIV test performed shall be
74	disclosed solely to the victim and the defendant, except as
75	provided in ss. 775.0877, 951.27, and 960.003.
76	7.  When an HIV test is mandated by court order.
77	8.  For epidemiological research pursuant to s. 381.0032,
78	for research consistent with institutional review boards created
79	by 45 C.F.R. part 46, or for the performance of an HIV-related
80	test for the purpose of research, if the testing is performed in
81	a manner by which the identity of the test subject is not known
82	and may not be retrieved by the researcher.
83	9.  When human tissue is collected lawfully without the
84	consent of the donor for corneal removal as authorized by s.
85	765.5185 or enucleation of the eyes as authorized by s. 765.519.
86	10.  For the performance of an HIV test upon an individual
87	who comes into contact with medical personnel in such a way that
88	a significant exposure has occurred during the course of
89	employment or within the scope of practice and where a blood
90	sample is available that was taken from that individual
91	voluntarily by medical personnel for other purposes. The term
92	"medical personnel" includes a licensed or certified health care
93	professional; an employee of a health care professional or
94	health care facility; employees of a laboratory licensed under
95	chapter 483; personnel of a blood bank or plasma center; a
96	medical student or other student who is receiving training as a
97	health care professional at a health care facility; and a
98	paramedic or emergency medical technician certified by the
99	department to perform life-support procedures under s. 401.23.
100	a.  Prior to performance of an HIV test on a voluntarily
101	obtained blood sample, the individual from whom the blood was
102	obtained shall be requested to consent to the performance of the
103	test and to the release of the results. The individual's refusal
104	to consent and all information concerning the performance of an
105	HIV test and any HIV test result shall be documented only in the
106	medical personnel's record unless the individual gives written
107	consent to entering this information on the individual's medical
108	record.
109	b.  Reasonable attempts to locate the individual and to
110	obtain consent shall be made, and all attempts must be
111	documented. If the individual cannot be found, an HIV test may
112	be conducted on the available blood sample. If the individual
113	does not voluntarily consent to the performance of an HIV test,
114	the individual shall be informed that an HIV test will be
115	performed, and counseling shall be furnished as provided in this
116	section. However, HIV testing shall be conducted only after a
117	licensed physician documents, in the medical record of the
118	medical personnel, that there has been a significant exposure
119	and that, in the physician's medical judgment, the information
120	is medically necessary to determine the course of treatment for
121	the medical personnel.
122	c.  Costs of any HIV test of a blood sample performed with
123	or without the consent of the individual, as provided in this
124	subparagraph, shall be borne by the medical personnel or the
125	employer of the medical personnel. However, costs of testing or
126	treatment not directly related to the initial HIV tests or costs
127	of subsequent testing or treatment may not be borne by the
128	medical personnel or the employer of the medical personnel.
129	d.  In order to utilize the provisions of this
130	subparagraph, the medical personnel must either be tested for
131	HIV pursuant to this section or provide the results of an HIV
132	test taken within 6 months prior to the significant exposure if
133	such test results are negative.
134	e.  A person who receives the results of an HIV test
135	pursuant to this subparagraph shall maintain the confidentiality
136	of the information received and of the persons tested. Such
137	confidential information is exempt from s. 119.07(1).
138	f.  If the source of the exposure will not voluntarily
139	submit to HIV testing and a blood sample is not available, the
140	medical personnel or the employer of such person acting on
141	behalf of the employee may seek a court order directing the
142	source of the exposure to submit to HIV testing. A sworn
143	statement by a physician licensed under chapter 458 or chapter
144	459 that a significant exposure has occurred and that, in the
145	physician's medical judgment, testing is medically necessary to
146	determine the course of treatment constitutes probable cause for
147	the issuance of an order by the court. The results of the test
148	shall be released to the source of the exposure and to the
149	person who experienced the exposure.
150	11.  For the performance of an HIV test upon an individual
151	who comes into contact with medical personnel in such a way that
152	a significant exposure has occurred during the course of
153	employment or within the scope of practice of the medical
154	personnel while the medical personnel provides emergency medical
155	treatment to the individual; or who comes into contact with
156	nonmedical personnel in such a way that a significant exposure
157	has occurred while the nonmedical personnel provides emergency
158	medical assistance during a medical emergency. For the purposes
159	of this subparagraph, a medical emergency means an emergency
160	medical condition outside of a hospital or health care facility
161	that provides physician care. The test may be performed only
162	during the course of treatment for the medical emergency.
163	a.  An individual who is capable of providing consent shall
164	be requested to consent to an HIV test prior to the testing. The
165	individual's refusal to consent, and all information concerning
166	the performance of an HIV test and its result, shall be
167	documented only in the medical personnel's record unless the
168	individual gives written consent to entering this information on
169	the individual's medical record.
170	b.  HIV testing shall be conducted only after a licensed
171	physician documents, in the medical record of the medical
172	personnel or nonmedical personnel, that there has been a
173	significant exposure and that, in the physician's medical
174	judgment, the information is medically necessary to determine
175	the course of treatment for the medical personnel or nonmedical
176	personnel.
177	c.  Costs of any HIV test performed with or without the
178	consent of the individual, as provided in this subparagraph,
179	shall be borne by the medical personnel or the employer of the
180	medical personnel or nonmedical personnel. However, costs of
181	testing or treatment not directly related to the initial HIV
182	tests or costs of subsequent testing or treatment may not be
183	borne by the medical personnel or the employer of the medical
184	personnel or nonmedical personnel.
185	d.  In order to utilize the provisions of this
186	subparagraph, the medical personnel or nonmedical personnel
187	shall be tested for HIV pursuant to this section or shall
188	provide the results of an HIV test taken within 6 months prior
189	to the significant exposure if such test results are negative.
190	e.  A person who receives the results of an HIV test
191	pursuant to this subparagraph shall maintain the confidentiality
192	of the information received and of the persons tested. Such
193	confidential information is exempt from s. 119.07(1).
194	f.  If the source of the exposure will not voluntarily
195	submit to HIV testing and a blood sample was not obtained during
196	treatment for the medical emergency, the medical personnel, the
197	employer of the medical personnel acting on behalf of the
198	employee, or the nonmedical personnel may seek a court order
199	directing the source of the exposure to submit to HIV testing. A
200	sworn statement by a physician licensed under chapter 458 or
201	chapter 459 that a significant exposure has occurred and that,
202	in the physician's medical judgment, testing is medically
203	necessary to determine the course of treatment constitutes
204	probable cause for the issuance of an order by the court. The
205	results of the test shall be released to the source of the
206	exposure and to the person who experienced the exposure.
207	12.  For the performance of an HIV test by the medical
208	examiner or attending physician upon an individual who expired
209	or could not be resuscitated while receiving emergency medical
210	assistance or care and who was the source of a significant
211	exposure to medical or nonmedical personnel providing such
212	assistance or care.
213	a.  HIV testing may be conducted only after a licensed
214	physician documents in the medical record of the medical
215	personnel or nonmedical personnel that there has been a
216	significant exposure and that, in the physician's medical
217	judgment, the information is medically necessary to determine
218	the course of treatment for the medical personnel or nonmedical
219	personnel.
220	b.  Costs of any HIV test performed under this subparagraph
221	may not be charged to the deceased or to the family of the
222	deceased person.
223	c.  For the provisions of this subparagraph to be
224	applicable, the medical personnel or nonmedical personnel must
225	be tested for HIV under this section or must provide the results
226	of an HIV test taken within 6 months before the significant
227	exposure if such test results are negative.
228	d.  A person who receives the results of an HIV test
229	pursuant to this subparagraph shall comply with paragraph (e).
230	13.  For the performance of an HIV-related test medically
231	indicated by licensed medical personnel for medical diagnosis of
232	a hospitalized infant as necessary to provide appropriate care
233	and treatment of the infant when, after a reasonable attempt, a
234	parent cannot be contacted to provide consent. The medical
235	records of the infant shall reflect the reason consent of the
236	parent was not initially obtained. Test results shall be
237	provided to the parent when the parent is located.
238	14.  For the performance of HIV testing conducted to
239	monitor the clinical progress of a patient previously diagnosed
240	to be HIV positive.
241	15.  For the performance of repeated HIV testing conducted
242	to monitor possible conversion from a significant exposure.
243	Section 3.  This act shall take effect July 1, 2007.

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