Florida Senate - 2008 CS for SB 1648
By the Committee on Health Regulation; and Senator Saunders
588-06446A-08 20081648c1
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A bill to be entitled
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An act relating to human immunodeficiency virus testing;
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amending s. 381.004, F.S.; requiring that when consent
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cannot be obtained within the time necessary to conduct an
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HIV test on an individual and begin prophylactic treatment
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of exposed medical personnel, the results of the HIV test
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shall be documented only in the medical file of the
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medical personnel and not in the medical file of the
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patient unless he or she gives consent; authorizing
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appropriate medical personnel under the supervision of a
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licensed physician to make the decision to test under
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these conditions; requiring those personnel to document
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the significant exposure requiring the HIV testing without
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valid consent in accordance with written protocol based on
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the medical judgment of a licensed physician; providing an
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effective date.
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Be It Enacted by the Legislature of the State of Florida:
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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 CONSENT;
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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 with
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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 results
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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 of
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sexual battery where a blood sample is taken from the defendant
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voluntarily, pursuant to court order for any purpose, or pursuant
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however, the results of any HIV test performed shall be disclosed
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solely to the victim and the defendant, except as provided in ss.
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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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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 health
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care facility; employees of a laboratory licensed under chapter
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483; personnel of a blood bank or plasma center; a medical
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student or other student who is receiving training as a health
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care professional at a health care facility; and a paramedic or
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emergency medical technician certified by the department to
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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 result
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shall be documented only in the medical personnel's record unless
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the individual gives written consent to entering this information
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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 incapable of
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providing consent, an HIV test may be conducted on the available
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blood sample. If the individual does not voluntarily consent to
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the performance of an HIV test, the individual shall be informed
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that an HIV test will be performed, and counseling shall be
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furnished as provided in this section. However, HIV testing shall
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be 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 subparagraph,
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the medical personnel must either be tested for HIV pursuant to
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this section or provide the results of an HIV test taken within 6
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months prior to the significant exposure if such test results are
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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 behalf
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of the employee may seek a court order directing the source of
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the exposure to submit to HIV testing. A sworn statement by a
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physician licensed under chapter 458 or chapter 459 that a
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significant exposure has occurred and that, in the physician's
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medical judgment, testing is medically necessary to determine the
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course of treatment constitutes probable cause for the issuance
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of an order by the court. The results of the test shall be
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released to the source of the exposure and to the person who
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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 during
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a medical emergency. For the purposes of this subparagraph, a
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medical emergency means an emergency medical condition outside of
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a hospital or health care facility that provides physician care.
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The test may be performed only during the course of treatment for
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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 on
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HIV postexposure prophylaxis and in the physician's medical
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judgment, the information is medically necessary to determine the
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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 subparagraph,
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the medical personnel or nonmedical personnel shall be tested for
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HIV pursuant to this section or shall provide the results of an
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HIV test taken within 6 months prior to the significant exposure
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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, in
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the physician's medical judgment, testing is medically necessary
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to determine the course of treatment constitutes probable cause
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for the issuance of an order by the court. The results of the
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test 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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12. For the performance of an HIV test by the medical
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examiner or attending physician upon an individual who expired or
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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 on
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HIV post-exposure prophylaxis and on the physician's medical
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judgment, the information is medically necessary to determine the
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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 be
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tested for HIV under this section or must provide the results of
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an HIV test taken within 6 months before the significant exposure
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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 provided
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to the parent when the parent is located.
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14. For the performance of HIV testing conducted to monitor
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the clinical progress of a patient previously diagnosed to be HIV
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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.
CODING: Words stricken are deletions; words underlined are additions.