HB 1035

1	A bill to be entitled
2	An act relating to human immunodeficiency virus testing;
3	amending s. 381.004, F.S.; providing conditions under
4	which an HIV test on a blood sample of an individual who
5	has not given consent may be performed; requiring
6	documentation by certain medical personnel under
7	supervision of a licensed physician prior to testing in
8	accordance with written protocol; providing an effective
9	date.
10
11	Be It Enacted by the Legislature of the State of Florida:
12
13	Section 1.  Paragraph (h) of subsection (3) of section
14	381.004, Florida Statutes, is amended to read:
15	381.004  HIV testing.--
16	(3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED
17	CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--
18	(h)  Notwithstanding the provisions of paragraph (a),
19	informed consent is not required:
20	1.  When testing for sexually transmissible diseases is
21	required by state or federal law, or by rule including the
22	following situations:
23	a.  HIV testing pursuant to s. 796.08 of persons convicted
24	of prostitution or of procuring another to commit prostitution.
25	b.  HIV testing of inmates pursuant to s. 945.355 prior to
26	their release from prison by reason of parole, accumulation of
27	gain-time credits, or expiration of sentence.
28	c.  Testing for HIV by a medical examiner in accordance
29	with s. 406.11.
30	d.  HIV testing of pregnant women pursuant to s. 384.31.
31	2.  Those exceptions provided for blood, plasma, organs,
32	skin, semen, or other human tissue pursuant to s. 381.0041.
33	3.  For the performance of an HIV-related test by licensed
34	medical personnel in bona fide medical emergencies when the test
35	results are necessary for medical diagnostic purposes to provide
36	appropriate emergency care or treatment to the person being
37	tested and the patient is unable to consent, as supported by
38	documentation in the medical record. Notification of test
39	results in accordance with paragraph (c) is required.
40	4.  For the performance of an HIV-related test by licensed
41	medical personnel for medical diagnosis of acute illness where,
42	in the opinion of the attending physician, obtaining informed
43	consent would be detrimental to the patient, as supported by
44	documentation in the medical record, and the test results are
45	necessary for medical diagnostic purposes to provide appropriate
46	care or treatment to the person being tested. Notification of
47	test results in accordance with paragraph (c) is required if it
48	would not be detrimental to the patient. This subparagraph does
49	not authorize the routine testing of patients for HIV infection
50	without informed consent.
51	5.  When HIV testing is performed as part of an autopsy for
52	which consent was obtained pursuant to s. 872.04.
53	6.  For the performance of an HIV test upon a defendant
54	pursuant to the victim's request in a prosecution for any type
55	of sexual battery where a blood sample is taken from the
56	defendant voluntarily, pursuant to court order for any purpose,
57	or pursuant to the provisions of s. 775.0877, s. 951.27, or s.
58	960.003; however, the results of any HIV test performed shall be
59	disclosed solely to the victim and the defendant, except as
60	provided in ss. 775.0877, 951.27, and 960.003.
61	7.  When an HIV test is mandated by court order.
62	8.  For epidemiological research pursuant to s. 381.0032,
63	for research consistent with institutional review boards created
64	by 45 C.F.R. part 46, or for the performance of an HIV-related
65	test for the purpose of research, if the testing is performed in
66	a manner by which the identity of the test subject is not known
67	and may not be retrieved by the researcher.
68	9.  When human tissue is collected lawfully without the
69	consent of the donor for corneal removal as authorized by s.
70	765.5185 or enucleation of the eyes as authorized by s. 765.519.
71	10.  For the performance of an HIV test upon an individual
72	who comes into contact with medical personnel in such a way that
73	a significant exposure has occurred during the course of
74	employment or within the scope of practice and where a blood
75	sample is available that was taken from that individual
76	voluntarily by medical personnel for other purposes. The term
77	"medical personnel" includes a licensed or certified health care
78	professional; an employee of a health care professional or
79	health care facility; employees of a laboratory licensed under
80	chapter 483; personnel of a blood bank or plasma center; a
81	medical student or other student who is receiving training as a
82	health care professional at a health care facility; and a
83	paramedic or emergency medical technician certified by the
84	department to perform life-support procedures under s. 401.23.
85	a.  Prior to performance of an HIV test on a voluntarily
86	obtained blood sample, the individual from whom the blood was
87	obtained shall be requested to consent to the performance of the
88	test and to the release of the results. If consent cannot be
89	obtained within the time period necessary to perform the HIV
90	test and begin prophylactic treatment of the exposed medical
91	personnel, The individual's refusal to consent and all
92	information concerning the performance of an HIV test and any
93	HIV test result shall be documented only in the medical
94	personnel's record unless the individual gives written consent
95	to entering this information on the individual's medical record.
96	b.  Reasonable attempts to locate the individual and to
97	obtain consent shall be made, and all attempts must be
98	documented. If the individual cannot be found or is unavailable,
99	an HIV test may be conducted on the available blood sample. If
100	the individual does not voluntarily consent to the performance
101	of an HIV test, the individual shall be informed that an HIV
102	test will be performed, and counseling shall be furnished as
103	provided in this section. However, HIV testing shall be
104	conducted only after appropriate medical personnel under the
105	supervision of a licensed physician document documents, in the
106	medical record of the medical personnel, that there has been a
107	significant exposure and that, in accordance with the written
108	protocol based on the physician's medical judgment, the
109	information is medically necessary to determine the course of
110	treatment for the medical personnel.
111	c.  Costs of any HIV test of a blood sample performed with
112	or without the consent of the individual, as provided in this
113	subparagraph, shall be borne by the medical personnel or the
114	employer of the medical personnel. However, costs of testing or
115	treatment not directly related to the initial HIV tests or costs
116	of subsequent testing or treatment may not be borne by the
117	medical personnel or the employer of the medical personnel.
118	d.  In order to utilize the provisions of this
119	subparagraph, the medical personnel must either be tested for
120	HIV pursuant to this section or provide the results of an HIV
121	test taken within 6 months prior to the significant exposure if
122	such test results are negative.
123	e.  A person who receives the results of an HIV test
124	pursuant to this subparagraph shall maintain the confidentiality
125	of the information received and of the persons tested. Such
126	confidential information is exempt from s. 119.07(1).
127	f.  If the source of the exposure will not voluntarily
128	submit to HIV testing and a blood sample is not available, the
129	medical personnel or the employer of such person acting on
130	behalf of the employee may seek a court order directing the
131	source of the exposure to submit to HIV testing. A sworn
132	statement by a physician licensed under chapter 458 or chapter
133	459 that a significant exposure has occurred and that, in the
134	physician's medical judgment, testing is medically necessary to
135	determine the course of treatment constitutes probable cause for
136	the issuance of an order by the court. The results of the test
137	shall be released to the source of the exposure and to the
138	person who experienced the exposure.
139	11.  For the performance of an HIV test upon an individual
140	who comes into contact with medical personnel in such a way that
141	a significant exposure has occurred during the course of
142	employment or within the scope of practice of the medical
143	personnel while the medical personnel provides emergency medical
144	treatment to the individual; or, notwithstanding s. 384.287, an
145	individual who comes into contact with nonmedical personnel in
146	such a way that a significant exposure has occurred while the
147	nonmedical personnel provides emergency medical assistance
148	during a medical emergency. For the purposes of this
149	subparagraph, a medical emergency means an emergency medical
150	condition outside of a hospital or health care facility that
151	provides physician care. The test may be performed only during
152	the course of treatment for the medical emergency.
153	a.  An individual who is capable of providing consent shall
154	be requested to consent to an HIV test prior to the testing. If
155	consent cannot be obtained within the time period necessary to
156	perform the HIV test and begin prophylactic treatment of the
157	exposed medical personnel The individual's refusal to consent,
158	and all information concerning the performance of an HIV test
159	and its result, shall be documented only in the medical
160	personnel's record unless the individual gives written consent
161	to entering this information on the individual's medical record.
162	b.  HIV testing shall be conducted only after appropriate
163	medical personnel under the supervision of a licensed physician
164	document documents, in the medical record of the medical
165	personnel or nonmedical personnel, that there has been a
166	significant exposure and that, in accordance with the written
167	protocol based on the physician's medical judgment, the
168	information is medically necessary to determine the course of
169	treatment for the medical personnel or nonmedical personnel.
170	c.  Costs of any HIV test performed with or without the
171	consent of the individual, as provided in this subparagraph,
172	shall be borne by the medical personnel or the employer of the
173	medical personnel or nonmedical personnel. However, costs of
174	testing or treatment not directly related to the initial HIV
175	tests or costs of subsequent testing or treatment may not be
176	borne by the medical personnel or the employer of the medical
177	personnel or nonmedical personnel.
178	d.  In order to utilize the provisions of this
179	subparagraph, the medical personnel or nonmedical personnel
180	shall be tested for HIV pursuant to this section or shall
181	provide the results of an HIV test taken within 6 months prior
182	to the significant exposure if such test results are negative.
183	e.  A person who receives the results of an HIV test
184	pursuant to this subparagraph shall maintain the confidentiality
185	of the information received and of the persons tested. Such
186	confidential information is exempt from s. 119.07(1).
187	f.  If the source of the exposure will not voluntarily
188	submit to HIV testing and a blood sample was not obtained during
189	treatment for the medical emergency, the medical personnel, the
190	employer of the medical personnel acting on behalf of the
191	employee, or the nonmedical personnel may seek a court order
192	directing the source of the exposure to submit to HIV testing. A
193	sworn statement by a physician licensed under chapter 458 or
194	chapter 459 that a significant exposure has occurred and that,
195	in the physician's medical judgment, testing is medically
196	necessary to determine the course of treatment constitutes
197	probable cause for the issuance of an order by the court. The
198	results of the test shall be released to the source of the
199	exposure and to the person who experienced the exposure.
200	12.  For the performance of an HIV test by the medical
201	examiner or attending physician upon an individual who expired
202	or could not be resuscitated while receiving emergency medical
203	assistance or care and who was the source of a significant
204	exposure to medical or nonmedical personnel providing such
205	assistance or care.
206	a.  HIV testing may be conducted only after appropriate
207	medical personnel under the supervision of a licensed physician
208	document, documents in the medical record of the medical
209	personnel or nonmedical personnel, that there has been a
210	significant exposure and that, in accordance with the written
211	protocol based on the physician's medical judgment, the
212	information is medically necessary to determine the course of
213	treatment for the medical personnel or nonmedical personnel.
214	b.  Costs of any HIV test performed under this subparagraph
215	may not be charged to the deceased or to the family of the
216	deceased person.
217	c.  For the provisions of this subparagraph to be
218	applicable, the medical personnel or nonmedical personnel must
219	be tested for HIV under this section or must provide the results
220	of an HIV test taken within 6 months before the significant
221	exposure if such test results are negative.
222	d.  A person who receives the results of an HIV test
223	pursuant to this subparagraph shall comply with paragraph (e).
224	13.  For the performance of an HIV-related test medically
225	indicated by licensed medical personnel for medical diagnosis of
226	a hospitalized infant as necessary to provide appropriate care
227	and treatment of the infant when, after a reasonable attempt, a
228	parent cannot be contacted to provide consent. The medical
229	records of the infant shall reflect the reason consent of the
230	parent was not initially obtained. Test results shall be
231	provided to the parent when the parent is located.
232	14.  For the performance of HIV testing conducted to
233	monitor the clinical progress of a patient previously diagnosed
234	to be HIV positive.
235	15.  For the performance of repeated HIV testing conducted
236	to monitor possible conversion from a significant exposure.
237	Section 2.  This act shall take effect July 1, 2008.

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