Florida Senate - 2009 SB 2110
By Senator Wilson
33-01734-09 20092110__
1 A bill to be entitled
2 An act relating to the testing of inmates for HIV
3 infection; amending s. 951.27, F.S.; requiring the
4 Department of Health to designate certain counties, if
5 approved by the county's governing body, to
6 participate in a program to test each inmate for HIV
7 infection upon sentencing to the county detention
8 facility; providing an exception; providing immunity
9 from liability for complying entities; amending s.
10 381.004, F.S.; providing that informed consent is not
11 required for an HIV test of an inmate upon his or her
12 entry into a county detention facility; providing an
13 effective date.
14
15 Be It Enacted by the Legislature of the State of Florida:
16
17 Section 1. Section 951.27, Florida Statutes, is amended to
18 read:
19 951.27 Blood tests of inmates.—
20 (1) Each county and each municipal detention facility shall
21 have a written procedure developed, in consultation with the
22 facility medical provider, establishing conditions under which
23 an inmate will be tested for infectious disease, including human
24 immunodeficiency virus pursuant to s. 775.0877, which procedure
25 is consistent with guidelines of the Centers for Disease Control
26 and Prevention and recommendations of the Correctional Medical
27 Authority. It is not unlawful for the person receiving the test
28 results to divulge the test results to the sheriff or chief
29 correctional officer.
30 (2) The Department of Health shall designate two counties
31 having a population of 1.2 million or more and five counties
32 having a population of fewer than 1.2 million to participate in
33 the testing program provided in this subsection, if
34 participation in the testing program is authorized by a majority
35 of the county's governing body. Each county detention facility
36 that lies within the authority of any participating county
37 shall, consistent with s. 381.004(3), perform an HIV test as
38 defined in s. 381.004(2) on each inmate unless the facility
39 knows that the inmate is HIV positive. The required test must be
40 performed within 14 days after the inmate is sentenced. A test
41 is not required under this subsection if an inmate is
42 transferred to the custody of the Department of Corrections for
43 incarceration in the state correctional system.
44 (3)(2) Except as otherwise provided in this subsection,
45 serologic blood test results obtained pursuant to subsection (1)
46 or subsection (2) are confidential and exempt from the
47 provisions of s. 119.07(1) and s. 24(a), Art. I of the State
48 Constitution. However, such results may be provided to employees
49 or officers of the sheriff or chief correctional officer who are
50 responsible for the custody and care of the affected inmate and
51 have a need to know such information, and as provided in ss.
52 381.004(3), 775.0877, and 960.003. In addition, upon request of
53 the victim or the victim's legal guardian, or the parent or
54 legal guardian of the victim if the victim is a minor, the
55 results of any HIV test performed on an inmate who has been
56 arrested for any sexual offense involving oral, anal, or vaginal
57 penetration by, or union with, the sexual organ of another,
58 shall be disclosed to the victim or the victim's legal guardian,
59 or to the parent or legal guardian of the victim if the victim
60 is a minor. In such cases, the county or municipal detention
61 facility shall furnish the test results to the Department of
62 Health, which is responsible for disclosing the results to
63 public health agencies as provided in s. 775.0877 and to the
64 victim or the victim's legal guardian, or the parent or legal
65 guardian of the victim if the victim is a minor, as provided in
66 s. 960.003(3).
67 (4)(3) The results of any serologic blood test on an inmate
68 are a part of that inmate's permanent medical file. Upon
69 transfer of the inmate to any other correctional facility, such
70 file is also transferred, and all relevant authorized persons
71 must be notified of positive HIV test results, as required in s.
72 775.0877.
73 (5) Notwithstanding any statute providing for a waiver of
74 sovereign immunity, the state, its agencies, or subdivisions,
75 and employees of the state, its agencies, or subdivisions, are
76 not liable to any person for negligently causing death or
77 personal injury arising out of complying with this section.
78 Section 2. Subsection (3) of section 381.004, Florida
79 Statutes, is amended to read:
80 381.004 HIV testing.—
81 (3) HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED CONSENT;
82 RESULTS; COUNSELING; CONFIDENTIALITY.—
83 (a) No person in this state shall order a test designed to
84 identify the human immunodeficiency virus, or its antigen or
85 antibody, without first obtaining the informed consent of the
86 person upon whom the test is being performed, except as
87 specified in paragraph (h). Informed consent shall be preceded
88 by an explanation of the right to confidential treatment of
89 information identifying the subject of the test and the results
90 of the test to the extent provided by law. Information shall
91 also be provided on the fact that a positive HIV test result
92 will be reported to the county health department with sufficient
93 information to identify the test subject and on the availability
94 and location of sites at which anonymous testing is performed.
95 As required in paragraph (4)(c), each county health department
96 shall maintain a list of sites at which anonymous testing is
97 performed, including the locations, phone numbers, and hours of
98 operation of the sites. Consent need not be in writing provided
99 there is documentation in the medical record that the test has
100 been explained and the consent has been obtained.
101 (b) Except as provided in paragraph (h), informed consent
102 must be obtained from a legal guardian or other person
103 authorized by law when the person:
104 1. Is not competent, is incapacitated, or is otherwise
105 unable to make an informed judgment; or
106 2. Has not reached the age of majority, except as provided
107 in s. 384.30.
108 (c) The person ordering the test or that person's designee
109 shall ensure that all reasonable efforts are made to notify the
110 test subject of his or her test result. Notification of a person
111 with a positive test result shall include information on the
112 availability of appropriate medical and support services, on the
113 importance of notifying partners who may have been exposed, and
114 on preventing transmission of HIV. Notification of a person with
115 a negative test result shall include, as appropriate,
116 information on preventing the transmission of HIV. When testing
117 occurs in a hospital emergency department, detention facility,
118 or other facility and the test subject has been released before
119 being notified of positive test results, informing the county
120 health department for that department to notify the test subject
121 fulfills this responsibility.
122 (d) A positive preliminary test result may not be revealed
123 to any person except in the following situations:
124 1. Preliminary test results may be released to licensed
125 physicians or the medical or nonmedical personnel subject to the
126 significant exposure for purposes of subparagraphs (h)10., 11.,
127 and 12.
128 2. Preliminary test results may be released to health care
129 providers and to the person tested when decisions about medical
130 care or treatment of, or recommendation to, the person tested
131 and, in the case of an intrapartum or postpartum woman, when
132 care, treatment, or recommendations regarding her newborn,
133 cannot await the results of confirmatory testing. Positive
134 preliminary HIV test results may not be characterized to the
135 patient as a diagnosis of HIV infection. Justification for the
136 use of preliminary test results must be documented in the
137 medical record by the health care provider who ordered the test.
138 3. The results of rapid testing technologies shall be
139 considered preliminary and may be released in accordance with
140 the manufacturer's instructions as approved by the federal Food
141 and Drug Administration.
142 4. Corroborating or confirmatory testing must be conducted
143 as followup to a positive preliminary test. Results shall be
144 communicated to the patient according to statute regardless of
145 the outcome. Except as provided in this section, test results
146 are confidential and exempt from the provisions of s. 119.07(1).
147 (e) Except as provided in this section, the identity of any
148 person upon whom a test has been performed and test results are
149 confidential and exempt from the provisions of s. 119.07(1). No
150 person who has obtained or has knowledge of a test result
151 pursuant to this section may disclose or be compelled to
152 disclose the identity of any person upon whom a test is
153 performed, or the results of such a test in a manner which
154 permits identification of the subject of the test, except to the
155 following persons:
156 1. The subject of the test or the subject's legally
157 authorized representative.
158 2. Any person, including third-party payors, designated in
159 a legally effective release of the test results executed prior
160 to or after the test by the subject of the test or the subject's
161 legally authorized representative. The test subject may in
162 writing authorize the disclosure of the test subject's HIV test
163 results to third party payors, who need not be specifically
164 identified, and to other persons to whom the test subject
165 subsequently issues a general release of medical information. A
166 general release without such prior written authorization is not
167 sufficient to release HIV test results.
168 3. An authorized agent or employee of a health facility or
169 health care provider if the health facility or health care
170 provider itself is authorized to obtain the test results, the
171 agent or employee participates in the administration or
172 provision of patient care or handles or processes specimens of
173 body fluids or tissues, and the agent or employee has a need to
174 know such information. The department shall adopt a rule
175 defining which persons have a need to know pursuant to this
176 subparagraph.
177 4. Health care providers consulting between themselves or
178 with health care facilities to determine diagnosis and
179 treatment. For purposes of this subparagraph, health care
180 providers shall include licensed health care professionals
181 employed by or associated with state, county, or municipal
182 detention facilities when such health care professionals are
183 acting exclusively for the purpose of providing diagnoses or
184 treatment of persons in the custody of such facilities.
185 5. The department, in accordance with rules for reporting
186 and controlling the spread of disease, as otherwise provided by
187 state law.
188 6. A health facility or health care provider which
189 procures, processes, distributes, or uses:
190 a. A human body part from a deceased person, with respect
191 to medical information regarding that person; or
192 b. Semen provided prior to July 6, 1988, for the purpose of
193 artificial insemination.
194 7. Health facility staff committees, for the purposes of
195 conducting program monitoring, program evaluation, or service
196 reviews pursuant to chapters 395 and 766.
197 8. Authorized medical or epidemiological researchers who
198 may not further disclose any identifying characteristics or
199 information.
200 9. A person allowed access by a court order which is issued
201 in compliance with the following provisions:
202 a. No court of this state shall issue such order unless the
203 court finds that the person seeking the test results has
204 demonstrated a compelling need for the test results which cannot
205 be accommodated by other means. In assessing compelling need,
206 the court shall weigh the need for disclosure against the
207 privacy interest of the test subject and the public interest
208 which may be disserved by disclosure which deters blood, organ,
209 and semen donation and future human immunodeficiency virus
210 related testing or which may lead to discrimination. This
211 paragraph shall not apply to blood bank donor records.
212 b. Pleadings pertaining to disclosure of test results shall
213 substitute a pseudonym for the true name of the subject of the
214 test. The disclosure to the parties of the subject's true name
215 shall be communicated confidentially in documents not filed with
216 the court.
217 c. Before granting any such order, the court shall provide
218 the individual whose test result is in question with notice and
219 a reasonable opportunity to participate in the proceedings if he
220 or she is not already a party.
221 d. Court proceedings as to disclosure of test results shall
222 be conducted in camera, unless the subject of the test agrees to
223 a hearing in open court or unless the court determines that a
224 public hearing is necessary to the public interest and the
225 proper administration of justice.
226 e. Upon the issuance of an order to disclose test results,
227 the court shall impose appropriate safeguards against
228 unauthorized disclosure which shall specify the persons who may
229 have access to the information, the purposes for which the
230 information shall be used, and appropriate prohibitions on
231 future disclosure.
232 10. A person allowed access by order of a judge of
233 compensation claims of the Division of Administrative Hearings.
234 A judge of compensation claims shall not issue such order unless
235 he or she finds that the person seeking the test results has
236 demonstrated a compelling need for the test results which cannot
237 be accommodated by other means.
238 11. Those employees of the department or of child-placing
239 or child-caring agencies or of family foster homes, licensed
240 pursuant to s. 409.175, who are directly involved in the
241 placement, care, control, or custody of such test subject and
242 who have a need to know such information; adoptive parents of
243 such test subject; or any adult custodian, any adult relative,
244 or any person responsible for the child's welfare, if the test
245 subject was not tested under subparagraph (b)2. and if a
246 reasonable attempt has been made to locate and inform the legal
247 guardian of a test result. The department shall adopt a rule to
248 implement this subparagraph.
249 12. Those employees of residential facilities or of
250 community-based care programs that care for developmentally
251 disabled persons, pursuant to chapter 393, who are directly
252 involved in the care, control, or custody of such test subject
253 and who have a need to know such information.
254 13. A health care provider involved in the delivery of a
255 child can note the mother's HIV test results in the child's
256 medical record.
257 14. Medical personnel or nonmedical personnel who have been
258 subject to a significant exposure during the course of medical
259 practice or in the performance of professional duties, or
260 individuals who are the subject of the significant exposure as
261 provided in subparagraphs (h)10.-12.
262 15. The medical examiner shall disclose positive HIV test
263 results to the department in accordance with rules for reporting
264 and controlling the spread of disease.
265 (f) Except as provided in this section, the identity of a
266 person upon whom a test has been performed is confidential and
267 exempt from the provisions of s. 119.07(1). No person to whom
268 the results of a test have been disclosed may disclose the test
269 results to another person except as authorized by this
270 subsection and by ss. 951.27 and 960.003. Whenever disclosure is
271 made pursuant to this subsection, it shall be accompanied by a
272 statement in writing which includes the following or
273 substantially similar language: “This information has been
274 disclosed to you from records whose confidentiality is protected
275 by state law. State law prohibits you from making any further
276 disclosure of such information without the specific written
277 consent of the person to whom such information pertains, or as
278 otherwise permitted by state law. A general authorization for
279 the release of medical or other information is NOT sufficient
280 for this purpose.” An oral disclosure shall be accompanied by
281 oral notice and followed by a written notice within 10 days,
282 except that this notice shall not be required for disclosures
283 made pursuant to subparagraphs (e)3. and 4.
284 (g) Human immunodeficiency virus test results contained in
285 the medical records of a hospital licensed under chapter 395 may
286 be released in accordance with s. 395.3025 without being subject
287 to the requirements of subparagraph (e)2., subparagraph (e)9.,
288 or paragraph (f); provided the hospital has obtained written
289 informed consent for the HIV test in accordance with provisions
290 of this section.
291 (h) Notwithstanding the provisions of paragraph (a),
292 informed consent is not required:
293 1. When testing for sexually transmissible diseases is
294 required by state or federal law, or by rule including the
295 following situations:
296 a. HIV testing pursuant to s. 796.08 of persons convicted
297 of prostitution or of procuring another to commit prostitution.
298 b. HIV testing of inmates pursuant to s. 945.355 prior to
299 their release from prison by reason of parole, accumulation of
300 gain-time credits, or expiration of sentence.
301 c. Testing for HIV by a medical examiner in accordance with
302 s. 406.11.
303 d. HIV testing of pregnant women pursuant to s. 384.31.
304 e. HIV testing of inmates pursuant to s. 951.27 upon entry
305 into a county detention facility.
306 2. Those exceptions provided for blood, plasma, organs,
307 skin, semen, or other human tissue pursuant to s. 381.0041.
308 3. For the performance of an HIV-related test by licensed
309 medical personnel in bona fide medical emergencies when the test
310 results are necessary for medical diagnostic purposes to provide
311 appropriate emergency care or treatment to the person being
312 tested and the patient is unable to consent, as supported by
313 documentation in the medical record. Notification of test
314 results in accordance with paragraph (c) is required.
315 4. For the performance of an HIV-related test by licensed
316 medical personnel for medical diagnosis of acute illness where,
317 in the opinion of the attending physician, obtaining informed
318 consent would be detrimental to the patient, as supported by
319 documentation in the medical record, and the test results are
320 necessary for medical diagnostic purposes to provide appropriate
321 care or treatment to the person being tested. Notification of
322 test results in accordance with paragraph (c) is required if it
323 would not be detrimental to the patient. This subparagraph does
324 not authorize the routine testing of patients for HIV infection
325 without informed consent.
326 5. When HIV testing is performed as part of an autopsy for
327 which consent was obtained pursuant to s. 872.04.
328 6. For the performance of an HIV test upon a defendant
329 pursuant to the victim's request in a prosecution for any type
330 of sexual battery where a blood sample is taken from the
331 defendant voluntarily, pursuant to court order for any purpose,
332 or pursuant to the provisions of s. 775.0877, s. 951.27, or s.
333 960.003; however, the results of any HIV test performed shall be
334 disclosed solely to the victim and the defendant, except as
335 provided in ss. 775.0877, 951.27, and 960.003.
336 7. When an HIV test is mandated by court order.
337 8. For epidemiological research pursuant to s. 381.0032,
338 for research consistent with institutional review boards created
339 by 45 C.F.R. part 46, or for the performance of an HIV-related
340 test for the purpose of research, if the testing is performed in
341 a manner by which the identity of the test subject is not known
342 and may not be retrieved by the researcher.
343 9. When human tissue is collected lawfully without the
344 consent of the donor for corneal removal as authorized by s.
345 765.5185 or enucleation of the eyes as authorized by s. 765.519.
346 10. For the performance of an HIV test upon an individual
347 who comes into contact with medical personnel in such a way that
348 a significant exposure has occurred during the course of
349 employment or within the scope of practice and where a blood
350 sample is available that was taken from that individual
351 voluntarily by medical personnel for other purposes. The term
352 “medical personnel” includes a licensed or certified health care
353 professional; an employee of a health care professional or
354 health care facility; employees of a laboratory licensed under
355 chapter 483; personnel of a blood bank or plasma center; a
356 medical student or other student who is receiving training as a
357 health care professional at a health care facility; and a
358 paramedic or emergency medical technician certified by the
359 department to perform life-support procedures under s. 401.23.
360 a. Prior to performance of an HIV test on a voluntarily
361 obtained blood sample, the individual from whom the blood was
362 obtained shall be requested to consent to the performance of the
363 test and to the release of the results. If consent cannot be
364 obtained within the time necessary to perform the HIV test and
365 begin prophylactic treatment of the exposed medical personnel,
366 all information concerning the performance of an HIV test and
367 any HIV test result shall be documented only in the medical
368 personnel's record unless the individual gives written consent
369 to entering this information on the individual's medical record.
370 b. Reasonable attempts to locate the individual and to
371 obtain consent shall be made, and all attempts must be
372 documented. If the individual cannot be found or is incapable of
373 providing consent, an HIV test may be conducted on the available
374 blood sample. If the individual does not voluntarily consent to
375 the performance of an HIV test, the individual shall be informed
376 that an HIV test will be performed, and counseling shall be
377 furnished as provided in this section. However, HIV testing
378 shall be conducted only after appropriate medical personnel
379 under the supervision of a licensed physician documents, in the
380 medical record of the medical personnel, that there has been a
381 significant exposure and that, in accordance with the written
382 protocols based on the National Centers for Disease Control and
383 Prevention guidelines on HIV postexposure prophylaxis and in the
384 physician's medical judgment, the information is medically
385 necessary to determine the course of treatment for the medical
386 personnel.
387 c. Costs of any HIV test of a blood sample performed with
388 or without the consent of the individual, as provided in this
389 subparagraph, shall be borne by the medical personnel or the
390 employer of the medical personnel. However, costs of testing or
391 treatment not directly related to the initial HIV tests or costs
392 of subsequent testing or treatment may not be borne by the
393 medical personnel or the employer of the medical personnel.
394 d. In order to utilize the provisions of this subparagraph,
395 the medical personnel must either be tested for HIV pursuant to
396 this section or provide the results of an HIV test taken within
397 6 months prior to the significant exposure if such test results
398 are negative.
399 e. A person who receives the results of an HIV test
400 pursuant to this subparagraph shall maintain the confidentiality
401 of the information received and of the persons tested. Such
402 confidential information is exempt from s. 119.07(1).
403 f. If the source of the exposure will not voluntarily
404 submit to HIV testing and a blood sample is not available, the
405 medical personnel or the employer of such person acting on
406 behalf of the employee may seek a court order directing the
407 source of the exposure to submit to HIV testing. A sworn
408 statement by a physician licensed under chapter 458 or chapter
409 459 that a significant exposure has occurred and that, in the
410 physician's medical judgment, testing is medically necessary to
411 determine the course of treatment constitutes probable cause for
412 the issuance of an order by the court. The results of the test
413 shall be released to the source of the exposure and to the
414 person who experienced the exposure.
415 11. For the performance of an HIV test upon an individual
416 who comes into contact with medical personnel in such a way that
417 a significant exposure has occurred during the course of
418 employment or within the scope of practice of the medical
419 personnel while the medical personnel provides emergency medical
420 treatment to the individual; or notwithstanding s. 384.287, an
421 individual who comes into contact with nonmedical personnel in
422 such a way that a significant exposure has occurred while the
423 nonmedical personnel provides emergency medical assistance
424 during a medical emergency. For the purposes of this
425 subparagraph, a medical emergency means an emergency medical
426 condition outside of a hospital or health care facility that
427 provides physician care. The test may be performed only during
428 the course of treatment for the medical emergency.
429 a. An individual who is capable of providing consent shall
430 be requested to consent to an HIV test prior to the testing. If
431 consent cannot be obtained within the time necessary to perform
432 the HIV test and begin prophylactic treatment of the exposed
433 medical personnel and nonmedical personnel, all information
434 concerning the performance of an HIV test and its result, shall
435 be documented only in the medical personnel's or nonmedical
436 personnel's record unless the individual gives written consent
437 to entering this information on the individual's medical record.
438 b. HIV testing shall be conducted only after appropriate
439 medical personnel under the supervision of a licensed physician
440 documents, in the medical record of the medical personnel or
441 nonmedical personnel, that there has been a significant exposure
442 and that, in accordance with the written protocols based on the
443 National Centers for Disease Control and Prevention guidelines
444 on HIV postexposure prophylaxis and in the physician's medical
445 judgment, the information is medically necessary to determine
446 the course of treatment for the medical personnel or nonmedical
447 personnel.
448 c. Costs of any HIV test performed with or without the
449 consent of the individual, as provided in this subparagraph,
450 shall be borne by the medical personnel or the employer of the
451 medical personnel or nonmedical personnel. However, costs of
452 testing or treatment not directly related to the initial HIV
453 tests or costs of subsequent testing or treatment may not be
454 borne by the medical personnel or the employer of the medical
455 personnel or nonmedical personnel.
456 d. In order to utilize the provisions of this subparagraph,
457 the medical personnel or nonmedical personnel shall be tested
458 for HIV pursuant to this section or shall provide the results of
459 an HIV test taken within 6 months prior to the significant
460 exposure if such test results are negative.
461 e. A person who receives the results of an HIV test
462 pursuant to this subparagraph shall maintain the confidentiality
463 of the information received and of the persons tested. Such
464 confidential information is exempt from s. 119.07(1).
465 f. If the source of the exposure will not voluntarily
466 submit to HIV testing and a blood sample was not obtained during
467 treatment for the medical emergency, the medical personnel, the
468 employer of the medical personnel acting on behalf of the
469 employee, or the nonmedical personnel may seek a court order
470 directing the source of the exposure to submit to HIV testing. A
471 sworn statement by a physician licensed under chapter 458 or
472 chapter 459 that a significant exposure has occurred and that,
473 in the physician's medical judgment, testing is medically
474 necessary to determine the course of treatment constitutes
475 probable cause for the issuance of an order by the court. The
476 results of the test shall be released to the source of the
477 exposure and to the person who experienced the exposure.
478 12. For the performance of an HIV test by the medical
479 examiner or attending physician upon an individual who expired
480 or could not be resuscitated while receiving emergency medical
481 assistance or care and who was the source of a significant
482 exposure to medical or nonmedical personnel providing such
483 assistance or care.
484 a. HIV testing may be conducted only after appropriate
485 medical personnel under the supervision of a licensed physician
486 documents in the medical record of the medical personnel or
487 nonmedical personnel that there has been a significant exposure
488 and that, in accordance with the written protocols based on the
489 National Centers for Disease Control and Prevention guidelines
490 on HIV postexposure prophylaxis and in the physician's medical
491 judgment, the information is medically necessary to determine
492 the course of treatment for the medical personnel or nonmedical
493 personnel.
494 b. Costs of any HIV test performed under this subparagraph
495 may not be charged to the deceased or to the family of the
496 deceased person.
497 c. For the provisions of this subparagraph to be
498 applicable, the medical personnel or nonmedical personnel must
499 be tested for HIV under this section or must provide the results
500 of an HIV test taken within 6 months before the significant
501 exposure if such test results are negative.
502 d. A person who receives the results of an HIV test
503 pursuant to this subparagraph shall comply with paragraph (e).
504 13. For the performance of an HIV-related test medically
505 indicated by licensed medical personnel for medical diagnosis of
506 a hospitalized infant as necessary to provide appropriate care
507 and treatment of the infant when, after a reasonable attempt, a
508 parent cannot be contacted to provide consent. The medical
509 records of the infant shall reflect the reason consent of the
510 parent was not initially obtained. Test results shall be
511 provided to the parent when the parent is located.
512 14. For the performance of HIV testing conducted to monitor
513 the clinical progress of a patient previously diagnosed to be
514 HIV positive.
515 15. For the performance of repeated HIV testing conducted
516 to monitor possible conversion from a significant exposure.
517 Section 3. This act shall take effect July 1, 2009.