1

A bill to be entitled

2

An act relating to the testing of inmates for HIV

3

infection in certain county detention facilities; amending

4

s. 951.27, F.S.; requiring the Department of Health to

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designate certain counties, if approved by the county's

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governing body, to participate in a program to test each

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inmate for HIV before the inmate is released if the

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inmate's HIV status is unknown; providing certain

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exceptions; requiring that certain county detention

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facilities notify the Department of Health and the county

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health department in the county where the inmate plans to

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reside following release if the inmate is HIV positive;

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requiring certain  detention facilities to provide special

14

transitional assistance to an inmate who is HIV positive;

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providing for immunity for complying entities; amending s.

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381.004, F.S.; providing that informed consent is not

17

required for an HIV test of an inmate before the inmate's

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release from a municipal or county detention facility;

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providing an effective date.

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

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23

     Section 1.  Section 951.27, Florida Statutes, is amended to

24

read:

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     951.27  Blood tests of inmates.--

26

     (1)  Each county and each municipal detention facility shall

27

have a written procedure developed, in consultation with the

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facility medical provider, establishing conditions under which an

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inmate will be tested for infectious disease, including human

30

immunodeficiency virus pursuant to s. 775.0877, which procedure

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is consistent with guidelines of the Centers for Disease Control

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and Prevention and recommendations of the Correctional Medical

33

Authority. It is not unlawful for the person receiving the test

34

results to divulge the test results to the sheriff or chief

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correctional officer.

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     (2)(a) The Department of Health shall designate two

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counties having a population of 1.2 million or more and five

38

counties having a population of fewer than 1.2 million to

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participate in the testing program provided in this subsection,

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if participation in the testing program is authorized by a

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majority of the county's governing body. Each county detention

42

facility that lies within the authority of any participating

43

county shall, consistent with s. 381.004(3), perform an HIV test

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as defined in s. 381.004(2) on each sentenced inmate who is to be

45

released from the facility unless the facility knows that the

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inmate is HIV positive or unless, within 120 days before the

47

release date, the inmate has been tested for HIV and does not

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request retesting. The required test must be performed not less

49

than 30 days before the release date of the inmate. A test is not

50

required under this paragraph if an inmate is released due to an

51

emergency or a court order and the detention facility receives

52

less than 30 days' notice of the release date or if the inmate is

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transferred to the custody of the Department of Corrections for

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incarceration in the state correctional system.

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     (b) Each county detention facility in a county that

56

participates in the testing program authorized in paragraph (a)

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must comply with the requirements of this paragraph. If the

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county detention facility knows that an inmate who is to be

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released from the facility is HIV positive or has received a

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positive HIV test result, that facility shall, before the inmate

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is released:

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     1. Notify, consistent with s. 381.004(3), the Department of

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Health and the county health department in the county where the

64

inmate being released plans to reside of the release date and HIV

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status of the inmate.

66

     2. Provide special transitional assistance to the inmate

67

which must include:

68

     a. Education on preventing the transmission of HIV to

69

others and on the importance of receiving followup medical care

70

and treatment.

71

     b. A written, individualized discharge plan that includes

72

records of all laboratory and diagnostic test results, medication

73

and treatment information, and referrals to and contacts with the

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county health department and local primary medical care services

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for the treatment of HIV infection which are available in the

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area where the inmate plans to reside.

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     (3)(2) Except as otherwise provided in this subsection,

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serologic blood test results obtained pursuant to subsection (1)

79

or subsection (2) are confidential and exempt from the provisions

80

of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

81

However, such results may be provided to employees or officers of

82

the sheriff or chief correctional officer who are responsible for

83

the custody and care of the affected inmate and have a need to

84

know such information, and as provided in ss. 381.004(3),

85

775.0877, and 960.003. In addition, upon request of the victim or

86

the victim's legal guardian, or the parent or legal guardian of

87

the victim if the victim is a minor, the results of any HIV test

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performed on an inmate who has been arrested for any sexual

89

offense involving oral, anal, or vaginal penetration by, or union

90

with, the sexual organ of another, shall be disclosed to the

91

victim or the victim's legal guardian, or to the parent or legal

92

guardian of the victim if the victim is a minor. In such cases,

93

the county or municipal detention facility shall furnish the test

94

results to the Department of Health, which is responsible for

95

disclosing the results to public health agencies as provided in

96

s. 775.0877 and to the victim or the victim's legal guardian, or

97

the parent or legal guardian of the victim if the victim is a

98

minor, as provided in s. 960.003(3).

99

     (4)(3) The results of any serologic blood test on an inmate

100

are a part of that inmate's permanent medical file. Upon transfer

101

of the inmate to any other correctional facility, such file is

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also transferred, and all relevant authorized persons must be

103

notified of positive HIV test results, as required in s.

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775.0877.

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     (5) Notwithstanding any statute providing for a waiver of

106

sovereign immunity, the state, its agencies, or subdivisions, and

107

employees of the state, its agencies, or subdivisions, are not

108

liable to any person for negligently causing death or personal

109

injury arising out of complying with this section.

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     Section 2.  Subsection (3) of section 381.004, Florida

111

Statutes, is amended to read:

112

     381.004  HIV testing.--

113

     (3) HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED CONSENT;

114

RESULTS; COUNSELING; CONFIDENTIALITY.--

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     (a)  No person in this state shall order a test designed to

116

identify the human immunodeficiency virus, or its antigen or

117

antibody, without first obtaining the informed consent of the

118

person upon whom the test is being performed, except as specified

119

in paragraph (h). Informed consent shall be preceded by an

120

explanation of the right to confidential treatment of information

121

identifying the subject of the test and the results of the test

122

to the extent provided by law. Information shall also be provided

123

on the fact that a positive HIV test result will be reported to

124

the county health department with sufficient information to

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identify the test subject and on the availability and location of

126

sites at which anonymous testing is performed. As required in

127

paragraph (4)(c), each county health department shall maintain a

128

list of sites at which anonymous testing is performed, including

129

the locations, phone numbers, and hours of operation of the

130

sites. Consent need not be in writing provided there is

131

documentation in the medical record that the test has been

132

explained and the consent has been obtained.

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     (b)  Except as provided in paragraph (h), informed consent

134

must be obtained from a legal guardian or other person authorized

135

by law when the person:

136

     1.  Is not competent, is incapacitated, or is otherwise

137

unable to make an informed judgment; or

138

     2.  Has not reached the age of majority, except as provided

139

in s. 384.30.

140

     (c)  The person ordering the test or that person's designee

141

shall ensure that all reasonable efforts are made to notify the

142

test subject of his or her test result.  Notification of a person

143

with a positive test result shall include information on the

144

availability of appropriate medical and support services, on the

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importance of notifying partners who may have been exposed, and

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on preventing transmission of HIV. Notification of a person with

147

a negative test result shall include, as appropriate, information

148

on preventing the transmission of HIV. When testing occurs in a

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hospital emergency department, detention facility, or other

150

facility and the test subject has been released before being

151

notified of positive test results, informing the county health

152

department for that department to notify the test subject

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fulfills this responsibility.

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     (d)  A positive preliminary test result may not be revealed

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to any person except in the following situations:

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     1.  Preliminary test results may be released to licensed

157

physicians or the medical or nonmedical personnel subject to the

158

significant exposure for purposes of subparagraphs (h)10., 11.,

159

and 12.

160

     2.  Preliminary test results may be released to health care

161

providers and to the person tested when decisions about medical

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care or treatment of, or recommendation to, the person tested

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and, in the case of an intrapartum or postpartum woman, when

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care, treatment, or recommendations regarding her newborn, cannot

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await the results of confirmatory testing. Positive preliminary

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HIV test results may not be characterized to the patient as a

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diagnosis of HIV infection. Justification for the use of

168

preliminary test results must be documented in the medical record

169

by the health care provider who ordered the test.

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     3.  The results of rapid testing technologies shall be

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considered preliminary and may be released in accordance with the

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manufacturer's instructions as approved by the federal Food and

173

Drug Administration.

174

     4.  Corroborating or confirmatory testing must be conducted

175

as followup to a positive preliminary test.  Results shall be

176

communicated to the patient according to statute regardless of

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the outcome. Except as provided in this section, test results are

178

confidential and exempt from the provisions of s. 119.07(1).

179

     (e)  Except as provided in this section, the identity of any

180

person upon whom a test has been performed and test results are

181

confidential and exempt from the provisions of s. 119.07(1).  No

182

person who has obtained or has knowledge of a test result

183

pursuant to this section may disclose or be compelled to disclose

184

the identity of any person upon whom a test is performed, or the

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results of such a test in a manner which permits identification

186

of the subject of the test, except to the following persons:

187

     1.  The subject of the test or the subject's legally

188

authorized representative.

189

     2.  Any person, including third-party payors, designated in

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a legally effective release of the test results executed prior to

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or after the test by the subject of the test or the subject's

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legally authorized representative. The test subject may in

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writing authorize the disclosure of the test subject's HIV test

194

results to third party payors, who need not be specifically

195

identified, and to other persons to whom the test subject

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subsequently issues a general release of medical information.  A

197

general release without such prior written authorization is not

198

sufficient to release HIV test results.

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     3.  An authorized agent or employee of a health facility or

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health care provider if the health facility or health care

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provider itself is authorized to obtain the test results, the

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agent or employee participates in the administration or provision

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of patient care or handles or processes specimens of body fluids

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or tissues, and the agent or employee has a need to know such

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information.  The department shall adopt a rule defining which

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persons have a need to know pursuant to this subparagraph.

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     4.  Health care providers consulting between themselves or

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with health care facilities to determine diagnosis and treatment.

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For purposes of this subparagraph, health care providers shall

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include licensed health care professionals employed by or

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associated with state, county, or municipal detention facilities

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when such health care professionals are acting exclusively for

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the purpose of providing diagnoses or treatment of persons in the

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custody of such facilities.

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     5.  The department, in accordance with rules for reporting

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and controlling the spread of disease, as otherwise provided by

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state law.

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     6.  A health facility or health care provider which

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procures, processes, distributes, or uses:

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     a.  A human body part from a deceased person, with respect

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to medical information regarding that person; or

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     b.  Semen provided prior to July 6, 1988, for the purpose of

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artificial insemination.

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     7.  Health facility staff committees, for the purposes of

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conducting program monitoring, program evaluation, or service

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reviews pursuant to chapters 395 and 766.

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     8.  Authorized medical or epidemiological researchers who

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may not further disclose any identifying characteristics or

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information.

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     9.  A person allowed access by a court order which is issued

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in compliance with the following provisions:

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     a.  No court of this state shall issue such order unless the

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court finds that the person seeking the test results has

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demonstrated a compelling need for the test results which cannot

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be accommodated by other means.  In assessing compelling need,

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the court shall weigh the need for disclosure against the privacy

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interest of the test subject and the public interest which may be

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disserved by disclosure which deters blood, organ, and semen

239

donation and future human immunodeficiency virus-related testing

240

or which may lead to discrimination.  This paragraph shall not

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apply to blood bank donor records.

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     b.  Pleadings pertaining to disclosure of test results shall

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substitute a pseudonym for the true name of the subject of the

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test.  The disclosure to the parties of the subject's true name

245

shall be communicated confidentially in documents not filed with

246

the court.

247

     c.  Before granting any such order, the court shall provide

248

the individual whose test result is in question with notice and a

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reasonable opportunity to participate in the proceedings if he or

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she is not already a party.

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     d.  Court proceedings as to disclosure of test results shall

252

be conducted in camera, unless the subject of the test agrees to

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a hearing in open court or unless the court determines that a

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public hearing is necessary to the public interest and the proper

255

administration of justice.

256

     e.  Upon the issuance of an order to disclose test results,

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the court shall impose appropriate safeguards against

258

unauthorized disclosure which shall specify the persons who may

259

have access to the information, the purposes for which the

260

information shall be used, and appropriate prohibitions on future

261

disclosure.

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     10.  A person allowed access by order of a judge of

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compensation claims of the Division of Administrative Hearings. A

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judge of compensation claims shall not issue such order unless he

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or she finds that the person seeking the test results has

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demonstrated a compelling need for the test results which cannot

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be accommodated by other means.

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     11.  Those employees of the department or of child-placing

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or child-caring agencies or of family foster homes, licensed

270

pursuant to s. 409.175, who are directly involved in the

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placement, care, control, or custody of such test subject and who

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have a need to know such information; adoptive parents of such

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test subject; or any adult custodian, any adult relative, or any

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person responsible for the child's welfare, if the test subject

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was not tested under subparagraph (b)2. and if a reasonable

276

attempt has been made to locate and inform the legal guardian of

277

a test result. The department shall adopt a rule to implement

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this subparagraph.

279

     12.  Those employees of residential facilities or of

280

community-based care programs that care for developmentally

281

disabled persons, pursuant to chapter 393, who are directly

282

involved in the care, control, or custody of such test subject

283

and who have a need to know such information.

284

     13.  A health care provider involved in the delivery of a

285

child can note the mother's HIV test results in the child's

286

medical record.

287

     14.  Medical personnel or nonmedical personnel who have been

288

subject to a significant exposure during the course of medical

289

practice or in the performance of professional duties, or

290

individuals who are the subject of the significant exposure as

291

provided in subparagraphs (h)10.-12.

292

     15.  The medical examiner shall disclose positive HIV test

293

results to the department in accordance with rules for reporting

294

and controlling the spread of disease.

295

     (f)  Except as provided in this section, the identity of a

296

person upon whom a test has been performed is confidential and

297

exempt from the provisions of s. 119.07(1).  No person to whom

298

the results of a test have been disclosed may disclose the test

299

results to another person except as authorized by this subsection

300

and by ss. 951.27 and 960.003. Whenever disclosure is made

301

pursuant to this subsection, it shall be accompanied by a

302

statement in writing which includes the following or

303

substantially similar language: "This information has been

304

disclosed to you from records whose confidentiality is protected

305

by state law.  State law prohibits you from making any further

306

disclosure of such information without the specific written

307

consent of the person to whom such information pertains, or as

308

otherwise permitted by state law.  A general authorization for

309

the release of medical or other information is NOT sufficient for

310

this purpose." An oral disclosure shall be accompanied by oral

311

notice and followed by a written notice within 10 days, except

312

that this notice shall not be required for disclosures made

313

pursuant to subparagraphs (e)3. and 4.

314

     (g)  Human immunodeficiency virus test results contained in

315

the medical records of a hospital licensed under chapter 395 may

316

be released in accordance with s. 395.3025 without being subject

317

to the requirements of subparagraph (e)2., subparagraph (e)9., or

318

paragraph (f); provided the hospital has obtained written

319

informed consent for the HIV test in accordance with provisions

320

of this section.

321

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

322

informed consent is not required:

323

     1.  When testing for sexually transmissible diseases is

324

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

325

following situations:

326

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

327

of prostitution or of procuring another to commit prostitution.

328

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

329

their release from prison by reason of parole, accumulation of

330

gain-time credits, or expiration of sentence.

331

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

332

s. 406.11.

333

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

334

     e. HIV testing of inmates pursuant to s. 951.27 before

335

their release from a county or municipal detention facility.

336

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

337

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

338

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

339

medical personnel in bona fide medical emergencies when the test

340

results are necessary for medical diagnostic purposes to provide

341

appropriate emergency care or treatment to the person being

342

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

343

documentation in the medical record. Notification of test results

344

in accordance with paragraph (c) is required.

345

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

346

medical personnel for medical diagnosis of acute illness where,

347

in the opinion of the attending physician, obtaining informed

348

consent would be detrimental to the patient, as supported by

349

documentation in the medical record, and the test results are

350

necessary for medical diagnostic purposes to provide appropriate

351

care or treatment to the person being tested. Notification of

352

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

353

would not be detrimental to the patient.  This subparagraph does

354

not authorize the routine testing of patients for HIV infection

355

without informed consent.

356

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

357

which consent was obtained pursuant to s. 872.04.

358

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

359

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

360

sexual battery where a blood sample is taken from the defendant

361

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

362

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

363

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

364

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

365

775.0877, 951.27, and 960.003.

366

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

367

     8.  For epidemiological research pursuant to s. 381.0032,

368

for research consistent with institutional review boards created

369

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

370

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

371

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

372

and may not be retrieved by the researcher.

373

     9.  When human tissue is collected lawfully without the

374

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

375

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

376

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

377

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

378

a significant exposure has occurred during the course of

379

employment or within the scope of practice and where a blood

380

sample is available that was taken from that individual

381

voluntarily by medical personnel for other purposes.  The term

382

"medical personnel" includes a licensed or certified health care

383

professional; an employee of a health care professional or health

384

care facility; employees of a laboratory licensed under chapter

385

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

386

student or other student who is receiving training as a health

387

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

388

emergency medical technician certified by the department to

389

perform life-support procedures under s. 401.23.

390

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

391

obtained blood sample, the individual from whom the blood was

392

obtained shall be requested to consent to the performance of the

393

test and to the release of the results.  The individual's refusal

394

to consent and all information concerning the performance of an

395

HIV test and any HIV test result shall be documented only in the

396

medical personnel's record unless the individual gives written

397

consent to entering this information on the individual's medical

398

record.

399

     b.  Reasonable attempts to locate the individual and to

400

obtain consent shall be made, and all attempts must be

401

documented. If the individual cannot be found, an HIV test may be

402

conducted on the available blood sample. If the individual does

403

not voluntarily consent to the performance of an HIV test, the

404

individual shall be informed that an HIV test will be performed,

405

and counseling shall be furnished as provided in this section.  

406

However, HIV testing shall be conducted only after a licensed

407

physician documents, in the medical record of the medical

408

personnel, that there has been a significant exposure and that,

409

in the physician's medical judgment, the information is medically

410

necessary to determine the course of treatment for the medical

411

personnel.

412

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

413

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

414

subparagraph, shall be borne by the medical personnel or the

415

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

416

treatment not directly related to the initial HIV tests or costs

417

of subsequent testing or treatment may not be borne by the

418

medical personnel or the employer of the medical personnel.

419

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

420

the medical personnel must either be tested for HIV pursuant to

421

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

422

months prior to the significant exposure if such test results are

423

negative.

424

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

425

pursuant to this subparagraph shall maintain the confidentiality

426

of the information received and of the persons tested.  Such

427

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

428

     f.  If the source of the exposure will not voluntarily

429

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

430

medical personnel or the employer of such person acting on behalf

431

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

432

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

433

physician licensed under chapter 458 or chapter 459 that a

434

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

435

medical judgment, testing is medically necessary to determine the

436

course of treatment constitutes probable cause for the issuance

437

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

438

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

439

experienced the exposure.

440

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

441

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

442

a significant exposure has occurred during the course of

443

employment or within the scope of practice of the medical

444

personnel while the medical personnel provides emergency medical

445

treatment to the individual; or who comes into contact with

446

nonmedical personnel in such a way that a significant exposure

447

has occurred while the nonmedical personnel provides emergency

448

medical assistance during a medical emergency.  For the purposes

449

of this subparagraph, a medical emergency means an emergency

450

medical condition outside of a hospital or health care facility

451

that provides physician care. The test may be performed only

452

during the course of treatment for the medical emergency.

453

     a.  An individual who is capable of providing consent shall

454

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

455

individual's refusal to consent, and all information concerning

456

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

457

documented only in the medical personnel's record unless the

458

individual gives written consent to entering this information on

459

the individual's medical record.

460

     b.  HIV testing shall be conducted only after a licensed

461

physician documents, in the medical record of the medical

462

personnel or nonmedical personnel, that there has been a

463

significant exposure and that, in the physician's medical

464

judgment, the information is medically necessary to determine the

465

course of treatment for the medical personnel or nonmedical

466

personnel.

467

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

468

consent of the individual, as provided in this subparagraph,

469

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

470

medical personnel or nonmedical personnel. However, costs of

471

testing or treatment not directly related to the initial HIV

472

tests or costs of subsequent testing or treatment may not be

473

borne by the medical personnel or the employer of the medical

474

personnel or nonmedical personnel.

475

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

476

the medical personnel or nonmedical personnel shall be tested for

477

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

478

HIV test taken within 6 months prior to the significant exposure

479

if such test results are negative.

480

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

481

pursuant to this subparagraph shall maintain the confidentiality

482

of the information received and of the persons tested.  Such

483

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

484

     f.  If the source of the exposure will not voluntarily

485

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

486

treatment for the medical emergency, the medical personnel, the

487

employer of the medical personnel acting on behalf of the

488

employee, or the nonmedical personnel may seek a court order

489

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

490

sworn statement by a physician licensed under chapter 458 or

491

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

492

the physician's medical judgment, testing is medically necessary

493

to determine the course of treatment constitutes probable cause

494

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

495

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

496

person who experienced the exposure.

497

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

498

examiner or attending physician upon an individual who expired or

499

could not be resuscitated while receiving emergency medical

500

assistance or care and who was the source of a significant

501

exposure to medical or nonmedical personnel providing such

502

assistance or care.

503

     a.  HIV testing may be conducted only after a licensed

504

physician documents in the medical record of the medical

505

personnel or nonmedical personnel that there has been a

506

significant exposure and that, in the physician's medical

507

judgment, the information is medically necessary to determine the

508

course of treatment for the medical personnel or nonmedical

509

personnel.

510

     b.  Costs of any HIV test performed under this subparagraph

511

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

512

deceased person.

513

     c.  For the provisions of this subparagraph to be

514

applicable, the medical personnel or nonmedical personnel must be

515

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

516

an HIV test taken within 6 months before the significant exposure

517

if such test results are negative.

518

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

519

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

520

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

521

indicated by licensed medical personnel for medical diagnosis of

522

a hospitalized infant as necessary to provide appropriate care

523

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

524

parent cannot be contacted to provide consent. The medical

525

records of the infant shall reflect the reason consent of the

526

parent was not initially obtained.  Test results shall be

527

provided to the parent when the parent is located.

528

     14.  For the performance of HIV testing conducted to monitor

529

the clinical progress of a patient previously diagnosed to be HIV

530

positive.

531

     15.  For the performance of repeated HIV testing conducted

532

to monitor possible conversion from a significant exposure.

533

     Section 3.  This act shall take effect July 1, 2008.