1

2

An act relating to human immunodeficiency virus testing;

3

amending s. 381.004, F.S.; requiring that when consent

4

cannot be obtained within the time necessary to conduct an

5

HIV test on an individual and begin prophylactic treatment

6

of exposed medical personnel, the results of the HIV test

7

shall be documented only in the medical file of the

8

medical personnel and not in the medical file of the

9

patient unless he or she gives consent; authorizing

10

appropriate medical personnel under the supervision of a

11

licensed physician to make the decision to test under

12

these conditions; requiring those personnel to document

13

the significant exposure requiring the HIV testing without

14

valid consent in accordance with written protocol based on

15

the medical judgment of a licensed physician; providing an

16

effective date.

17

18

Be It Enacted by the Legislature of the State of Florida:

19

20

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

21

381.004, Florida Statutes, is amended to read:

22

     381.004  HIV testing.--

23

     (3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED CONSENT;

24

RESULTS; COUNSELING; CONFIDENTIALITY.--

25

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

26

informed consent is not required:

27

     1.  When testing for sexually transmissible diseases is

28

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

29

following situations:

30

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

31

of prostitution or of procuring another to commit prostitution.

32

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

33

their release from prison by reason of parole, accumulation of

34

gain-time credits, or expiration of sentence.

35

     c.  Testing for HIV by a medical examiner in accordance with

36

s. 406.11.

37

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

38

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

39

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

40

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

41

medical personnel in bona fide medical emergencies when the test

42

results are necessary for medical diagnostic purposes to provide

43

appropriate emergency care or treatment to the person being

44

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

45

documentation in the medical record. Notification of test results

46

in accordance with paragraph (c) is required.

47

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

48

medical personnel for medical diagnosis of acute illness where,

49

in the opinion of the attending physician, obtaining informed

50

consent would be detrimental to the patient, as supported by

51

documentation in the medical record, and the test results are

52

necessary for medical diagnostic purposes to provide appropriate

53

care or treatment to the person being tested. Notification of

54

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

55

would not be detrimental to the patient. This subparagraph does

56

not authorize the routine testing of patients for HIV infection

57

without informed consent.

58

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

59

which consent was obtained pursuant to s. 872.04.

60

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

61

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

62

sexual battery where a blood sample is taken from the defendant

63

voluntarily, pursuant to court order for any purpose, or pursuant

64

to the provisions of s. 775.0877, s. 951.27, or s. 960.003;

65

however, the results of any HIV test performed shall be disclosed

66

solely to the victim and the defendant, except as provided in ss.

67

775.0877, 951.27, and 960.003.

68

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

69

     8.  For epidemiological research pursuant to s. 381.0032,

70

for research consistent with institutional review boards created

71

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

72

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

73

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

74

and may not be retrieved by the researcher.

75

     9.  When human tissue is collected lawfully without the

76

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

77

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

78

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

79

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

80

a significant exposure has occurred during the course of

81

employment or within the scope of practice and where a blood

82

sample is available that was taken from that individual

83

voluntarily by medical personnel for other purposes. The term

84

"medical personnel" includes a licensed or certified health care

85

professional; an employee of a health care professional or health

86

care facility; employees of a laboratory licensed under chapter

87

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

88

student or other student who is receiving training as a health

89

care professional at a health care facility; and a paramedic or

90

emergency medical technician certified by the department to

91

perform life-support procedures under s. 401.23.

92

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

93

obtained blood sample, the individual from whom the blood was

94

obtained shall be requested to consent to the performance of the

95

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

96

obtained within the time necessary to perform the HIV test and

97

begin prophylactic treatment of the exposed medical personnel,

98

The individual's refusal to consent and all information

99

concerning the performance of an HIV test and any HIV test result

100

shall be documented only in the medical personnel's record unless

101

the individual gives written consent to entering this information

102

on the individual's medical record.

103

     b.  Reasonable attempts to locate the individual and to

104

obtain consent shall be made, and all attempts must be

105

documented. If the individual cannot be found or is incapable of

106

providing consent, an HIV test may be conducted on the available

107

blood sample. If the individual does not voluntarily consent to

108

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

109

that an HIV test will be performed, and counseling shall be

110

furnished as provided in this section. However, HIV testing shall

111

be conducted only after appropriate medical personnel under the

112

supervision of a licensed physician documents, in the medical

113

record of the medical personnel, that there has been a

114

significant exposure and that, in accordance with the written

115

protocols based on the National Centers for Disease Control and

116

Prevention guidelines on HIV postexposure prophylaxis and in the

117

physician's medical judgment, the information is medically

118

necessary to determine the course of treatment for the medical

119

personnel.

120

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

121

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

122

subparagraph, shall be borne by the medical personnel or the

123

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

124

treatment not directly related to the initial HIV tests or costs

125

of subsequent testing or treatment may not be borne by the

126

medical personnel or the employer of the medical personnel.

127

     d.  In order to utilize the provisions of this subparagraph,

128

the medical personnel must either be tested for HIV pursuant to

129

this section or provide the results of an HIV test taken within 6

130

months prior to the significant exposure if such test results are

131

negative.

132

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

133

pursuant to this subparagraph shall maintain the confidentiality

134

of the information received and of the persons tested. Such

135

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

136

     f.  If the source of the exposure will not voluntarily

137

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

138

medical personnel or the employer of such person acting on behalf

139

of the employee may seek a court order directing the source of

140

the exposure to submit to HIV testing. A sworn statement by a

141

physician licensed under chapter 458 or chapter 459 that a

142

significant exposure has occurred and that, in the physician's

143

medical judgment, testing is medically necessary to determine the

144

course of treatment constitutes probable cause for the issuance

145

of an order by the court. The results of the test shall be

146

released to the source of the exposure and to the person who

147

experienced the exposure.

148

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

149

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

150

a significant exposure has occurred during the course of

151

employment or within the scope of practice of the medical

152

personnel while the medical personnel provides emergency medical

153

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

154

individual who comes into contact with nonmedical personnel in

155

such a way that a significant exposure has occurred while the

156

nonmedical personnel provides emergency medical assistance during

157

a medical emergency. For the purposes of this subparagraph, a

158

medical emergency means an emergency medical condition outside of

159

a hospital or health care facility that provides physician care.

160

The test may be performed only during the course of treatment for

161

the medical emergency.

162

     a.  An individual who is capable of providing consent shall

163

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

164

consent cannot be obtained within the time necessary to perform

165

the HIV test and begin prophylactic treatment of the exposed

166

medical personnel and nonmedical personnel, The individual's

167

refusal to consent, and all information concerning the

168

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

169

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

170

unless the individual gives written consent to entering this

171

information on the individual's medical record.

172

     b. HIV testing shall be conducted only after appropriate

173

medical personnel under the supervision of a licensed physician

174

documents, in the medical record of the medical personnel or

175

nonmedical personnel, that there has been a significant exposure

176

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

177

National Centers for Disease Control and Prevention guidelines on

178

HIV postexposure prophylaxis and in the physician's medical

179

judgment, the information is medically necessary to determine the

180

course of treatment for the medical personnel or nonmedical

181

personnel.

182

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

183

consent of the individual, as provided in this subparagraph,

184

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

185

medical personnel or nonmedical personnel. However, costs of

186

testing or treatment not directly related to the initial HIV

187

tests or costs of subsequent testing or treatment may not be

188

borne by the medical personnel or the employer of the medical

189

personnel or nonmedical personnel.

190

     d.  In order to utilize the provisions of this subparagraph,

191

the medical personnel or nonmedical personnel shall be tested for

192

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

193

HIV test taken within 6 months prior to the significant exposure

194

if such test results are negative.

195

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

196

pursuant to this subparagraph shall maintain the confidentiality

197

of the information received and of the persons tested. Such

198

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

199

     f.  If the source of the exposure will not voluntarily

200

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

201

treatment for the medical emergency, the medical personnel, the

202

employer of the medical personnel acting on behalf of the

203

employee, or the nonmedical personnel may seek a court order

204

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

205

sworn statement by a physician licensed under chapter 458 or

206

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

207

the physician's medical judgment, testing is medically necessary

208

to determine the course of treatment constitutes probable cause

209

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

210

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

211

person who experienced the exposure.

212

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

213

examiner or attending physician upon an individual who expired or

214

could not be resuscitated while receiving emergency medical

215

assistance or care and who was the source of a significant

216

exposure to medical or nonmedical personnel providing such

217

assistance or care.

218

     a. HIV testing may be conducted only after appropriate

219

medical personnel under the supervision of a licensed physician

220

documents in the medical record of the medical personnel or

221

nonmedical personnel that there has been a significant exposure

222

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

223

National Centers for Disease Control and Prevention guidelines on

224

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

225

judgment, the information is medically necessary to determine the

226

course of treatment for the medical personnel or nonmedical

227

personnel.

228

     b.  Costs of any HIV test performed under this subparagraph

229

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

230

deceased person.

231

     c.  For the provisions of this subparagraph to be

232

applicable, the medical personnel or nonmedical personnel must be

233

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

234

an HIV test taken within 6 months before the significant exposure

235

if such test results are negative.

236

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

237

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

238

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

239

indicated by licensed medical personnel for medical diagnosis of

240

a hospitalized infant as necessary to provide appropriate care

241

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

242

parent cannot be contacted to provide consent. The medical

243

records of the infant shall reflect the reason consent of the

244

parent was not initially obtained. Test results shall be provided

245

to the parent when the parent is located.

246

     14.  For the performance of HIV testing conducted to monitor

247

the clinical progress of a patient previously diagnosed to be HIV

248

positive.

249

     15.  For the performance of repeated HIV testing conducted

250

to monitor possible conversion from a significant exposure.

251

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