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The Committee on Health Regulation (Jones) recommended the

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following amendment:

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     Senate Amendment

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     Delete everything after the enacting clause

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and insert:

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     Section 1.  Paragraph (h) of subsection (3) of section

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381.004, Florida Statutes, is amended to read:

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     381.004  HIV testing.--

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     (3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED

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CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--

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

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informed consent is not required:

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     1.  When testing for sexually transmissible diseases is

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

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following situations:

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

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of prostitution or of procuring another to commit prostitution.

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

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their release from prison by reason of parole, accumulation of

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gain-time credits, or expiration of sentence.

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     c.  Testing for HIV by a medical examiner in accordance

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with s. 406.11.

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     d.  HIV testing of pregnant women pursuant to s. 384.31.

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     2.  Those exceptions provided for blood, plasma, organs,

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skin, semen, or other human tissue pursuant to s. 381.0041.

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

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medical personnel in bona fide medical emergencies when the test

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results are necessary for medical diagnostic purposes to provide

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appropriate emergency care or treatment to the person being

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tested and the patient is unable to consent, as supported by

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documentation in the medical record. Notification of test

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results in accordance with paragraph (c) is required.

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

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medical personnel for medical diagnosis of acute illness where,

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in the opinion of the attending physician, obtaining informed

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consent would be detrimental to the patient, as supported by

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documentation in the medical record, and the test results are

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necessary for medical diagnostic purposes to provide appropriate

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care or treatment to the person being tested. Notification of

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test results in accordance with paragraph (c) is required if it

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would not be detrimental to the patient. This subparagraph does

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not authorize the routine testing of patients for HIV infection

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without informed consent.

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

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which consent was obtained pursuant to s. 872.04.

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

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

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of sexual battery where a blood sample is taken from the

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defendant voluntarily, pursuant to court order for any purpose,

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or pursuant to the provisions of s. 775.0877, s. 951.27, or s.

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960.003; however, the results of any HIV test performed shall be

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disclosed solely to the victim and the defendant, except as

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provided in ss. 775.0877, 951.27, and 960.003.

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

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     8.  For epidemiological research pursuant to s. 381.0032,

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for research consistent with institutional review boards created

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by 45 C.F.R. part 46, or for the performance of an HIV-related

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test for the purpose of research, if the testing is performed in

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a manner by which the identity of the test subject is not known

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and may not be retrieved by the researcher.

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     9.  When human tissue is collected lawfully without the

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

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765.5185 or enucleation of the eyes as authorized by s. 765.519.

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

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who comes into contact with medical personnel in such a way that

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a significant exposure has occurred during the course of

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employment or within the scope of practice and where a blood

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sample is available that was taken from that individual

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voluntarily by medical personnel for other purposes. The term

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"medical personnel" includes a licensed or certified health care

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professional; an employee of a health care professional or

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health care facility; employees of a laboratory licensed under

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chapter 483; personnel of a blood bank or plasma center; a

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medical student or other student who is receiving training as a

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health care professional at a health care facility; and a

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paramedic or emergency medical technician certified by the

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department to perform life-support procedures under s. 401.23.

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

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obtained blood sample, the individual from whom the blood was

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obtained shall be requested to consent to the performance of the

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test and to the release of the results. If consent cannot be

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obtained within the time necessary to perform the HIV test and

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begin prophylactic treatment of the exposed medical personnel,

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The individual's refusal to consent and all information

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concerning the performance of an HIV test and any HIV test

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result shall be documented only in the medical personnel's

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record unless the individual gives written consent to entering

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this information on the individual's medical record.

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     b.  Reasonable attempts to locate the individual and to

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obtain consent shall be made, and all attempts must be

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documented. If the individual cannot be found or is unavailable,

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an HIV test may be conducted on the available blood sample. If

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the individual does not voluntarily consent to the performance

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of an HIV test, the individual shall be informed that an HIV

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test will be performed, and counseling shall be furnished as

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provided in this section. However, HIV testing shall be

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conducted only after appropriate medical personnel under the

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supervision of a licensed physician documents, in the medical

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record of the medical personnel, that there has been a

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significant exposure and that, in accordance with the written

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protocols based on the National Centers for Disease Control and

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Prevention guidelines on HIV postexposure prophylaxis and in the

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physician's medical judgment, the information is medically

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necessary to determine the course of treatment for the medical

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personnel.

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

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or without the consent of the individual, as provided in this

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subparagraph, shall be borne by the medical personnel or the

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employer of the medical personnel. However, costs of testing or

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treatment not directly related to the initial HIV tests or costs

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of subsequent testing or treatment may not be borne by the

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medical personnel or the employer of the medical personnel.

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     d.  In order to utilize the provisions of this

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subparagraph, the medical personnel must either be tested for

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

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test taken within 6 months prior to the significant exposure if

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such test results are negative.

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

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pursuant to this subparagraph shall maintain the confidentiality

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of the information received and of the persons tested. Such

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confidential information is exempt from s. 119.07(1).

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     f.  If the source of the exposure will not voluntarily

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

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medical personnel or the employer of such person acting on

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behalf of the employee may seek a court order directing the

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

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statement by a physician licensed under chapter 458 or chapter

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

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physician's medical judgment, testing is medically necessary to

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determine the course of treatment constitutes probable cause for

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the issuance of an order by the court. The results of the test

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shall be released to the source of the exposure and to the

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person who experienced the exposure.

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

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who comes into contact with medical personnel in such a way that

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a significant exposure has occurred during the course of

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employment or within the scope of practice of the medical

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personnel while the medical personnel provides emergency medical

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treatment to the individual; or notwithstanding s. 384.287, an

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individual who comes into contact with nonmedical personnel in

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such a way that a significant exposure has occurred while the

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nonmedical personnel provides emergency medical assistance

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during a medical emergency. For the purposes of this

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subparagraph, a medical emergency means an emergency medical

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condition outside of a hospital or health care facility that

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provides physician care. The test may be performed only during

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the course of treatment for the medical emergency.

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     a.  An individual who is capable of providing consent shall

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be requested to consent to an HIV test prior to the testing. If

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consent cannot be obtained within the time necessary to perform

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the HIV test and begin prophylactic treatment of the exposed

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medical personnel and nonmedical personnel, The individual's

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refusal to consent, and all information concerning the

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performance of an HIV test and its result, shall be documented

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only in the medical personnel's or nonmedical personnel's record

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unless the individual gives written consent to entering this

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information on the individual's medical record.

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     b. HIV testing shall be conducted only after appropriate

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medical personnel under the supervision of a licensed physician

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documents, in the medical record of the medical personnel or

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nonmedical personnel, that there has been a significant exposure

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and that, in accordance with the written protocols based on the

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National Centers for Disease Control and Prevention guidelines

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on HIV postexposure prophylaxis and on the physician's medical

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judgment, the information is medically necessary to determine

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the course of treatment for the medical personnel or nonmedical

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personnel.

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

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consent of the individual, as provided in this subparagraph,

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

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medical personnel or nonmedical personnel. However, costs of

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testing or treatment not directly related to the initial HIV

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tests or costs of subsequent testing or treatment may not be

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borne by the medical personnel or the employer of the medical

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personnel or nonmedical personnel.

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     d.  In order to utilize the provisions of this

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subparagraph, the medical personnel or nonmedical personnel

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shall be tested for HIV pursuant to this section or shall

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

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to the significant exposure if such test results are negative.

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

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pursuant to this subparagraph shall maintain the confidentiality

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of the information received and of the persons tested. Such

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confidential information is exempt from s. 119.07(1).

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     f.  If the source of the exposure will not voluntarily

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

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treatment for the medical emergency, the medical personnel, the

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employer of the medical personnel acting on behalf of the

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employee, or the nonmedical personnel may seek a court order

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directing the source of the exposure to submit to HIV testing. A

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sworn statement by a physician licensed under chapter 458 or

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chapter 459 that a significant exposure has occurred and that,

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in the physician's medical judgment, testing is medically

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necessary to determine the course of treatment constitutes

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probable cause for the issuance of an order by the court. The

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results of the test shall be released to the source of the

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exposure and to the person who experienced the exposure.

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

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examiner or attending physician upon an individual who expired

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or could not be resuscitated while receiving emergency medical

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assistance or care and who was the source of a significant

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exposure to medical or nonmedical personnel providing such

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assistance or care.

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     a. HIV testing may be conducted only after appropriate

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medical personnel under the supervision of a licensed physician

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documents in the medical record of the medical personnel or

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nonmedical personnel that there has been a significant exposure

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and that, in accordance with the written protocols based on the

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National Centers for Disease Control and Prevention guidelines

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on HIV post-exposure prophylaxis and on the physician's medical

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judgment, the information is medically necessary to determine

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the course of treatment for the medical personnel or nonmedical

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personnel.

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     b.  Costs of any HIV test performed under this subparagraph

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may not be charged to the deceased or to the family of the

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deceased person.

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     c.  For the provisions of this subparagraph to be

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applicable, the medical personnel or nonmedical personnel must

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

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of an HIV test taken within 6 months before the significant

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exposure if such test results are negative.

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

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

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

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indicated by licensed medical personnel for medical diagnosis of

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a hospitalized infant as necessary to provide appropriate care

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and treatment of the infant when, after a reasonable attempt, a

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parent cannot be contacted to provide consent. The medical

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records of the infant shall reflect the reason consent of the

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parent was not initially obtained. Test results shall be

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provided to the parent when the parent is located.

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     14.  For the performance of HIV testing conducted to

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monitor the clinical progress of a patient previously diagnosed

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to be HIV positive.

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     15.  For the performance of repeated HIV testing conducted

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to monitor possible conversion from a significant exposure.

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     Section 2.  This act shall take effect July 1, 2008.

3/11/2008  3:52:00 PM     588-04661-08