Florida Senate - 2015                        COMMITTEE AMENDMENT
       Bill No. SB 512
       
       
       
       
       
       
                                Ì532310^Î532310                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/17/2015           .                                
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       The Committee on Health Policy (Braynon) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5  
    6         Section 1. Subsection (1) of section 381.004, Florida
    7  Statutes, is reordered and amended, and paragraphs (a), (b),
    8  (g), and (h) of subsection (2) and paragraph (d) of subsection
    9  (4) of that section are amended, to read:
   10         381.004 HIV testing.—
   11         (1) DEFINITIONS.—As used in this section, the term:
   12         (a) “Health care setting” means a setting devoted to the
   13  diagnosis and care of persons or the provision of medical
   14  services to persons, such as county health department clinics,
   15  hospitals, urgent care clinics, substance abuse treatment
   16  clinics, primary care settings, community clinics, blood banks,
   17  mobile medical clinics, and correctional health care facilities.
   18         (b)(a) “HIV test” means a test ordered after July 6, 1988,
   19  to determine the presence of the antibody or antigen to human
   20  immunodeficiency virus or the presence of human immunodeficiency
   21  virus infection.
   22         (c)(b) “HIV test result” means a laboratory report of a
   23  human immunodeficiency virus test result entered into a medical
   24  record on or after July 6, 1988, or any report or notation in a
   25  medical record of a laboratory report of a human
   26  immunodeficiency virus test. As used in this section, The term
   27  “HIV test result” does not include test results reported to a
   28  health care provider by a patient.
   29         (d) “Nonhealth care setting” means a site that conducts HIV
   30  testing for the sole purpose of identifying HIV infection but
   31  does not provide medical treatment. The term includes community
   32  based organizations, outreach settings, county health department
   33  HIV testing programs, and mobile vans.
   34         (f)(c) “Significant exposure” means:
   35         1. Exposure to blood or body fluids through needlestick,
   36  instruments, or sharps;
   37         2. Exposure of mucous membranes to visible blood or body
   38  fluids, to which universal precautions apply according to the
   39  National Centers for Disease Control and Prevention, including,
   40  without limitations, the following body fluids:
   41         a. Blood.
   42         b. Semen.
   43         c. Vaginal secretions.
   44         d. Cerebrospinal Cerebro-spinal fluid (CSF).
   45         e. Synovial fluid.
   46         f. Pleural fluid.
   47         g. Peritoneal fluid.
   48         h. Pericardial fluid.
   49         i. Amniotic fluid.
   50         j. Laboratory specimens that contain HIV (e.g., suspensions
   51  of concentrated virus); or
   52         3. Exposure of skin to visible blood or body fluids,
   53  especially when the exposed skin is chapped, abraded, or
   54  afflicted with dermatitis or the contact is prolonged or
   55  involving an extensive area.
   56         (e)(d) “Preliminary HIV test” means an antibody or
   57  antibody-antigen screening test, such as the enzyme-linked
   58  immunosorbent assays (IA), or a rapid test approved by the
   59  United States Food and Drug Administration (ELISAs) or the
   60  Single-Use Diagnostic System (SUDS).
   61         (g)(e) “Test subject” or “subject of the test” means the
   62  person upon whom an HIV test is performed, or the person who has
   63  legal authority to make health care decisions for the test
   64  subject.
   65         (2) HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED CONSENT;
   66  RESULTS; COUNSELING; CONFIDENTIALITY.—
   67         (a) Before performing an HIV test:
   68         1. In a health care setting, the person to be tested must
   69  be notified orally or in writing that the HIV test is planned
   70  and that he or she has the right to decline the test. If the
   71  person to be tested declines the test, such decision shall be
   72  documented in the person’s medical record. A person who has
   73  signed a general consent form for medical care is not required
   74  to sign or otherwise provide a separate consent for an HIV test
   75  during the period in which the general consent form is in effect
   76  No person in this state shall order a test designed to identify
   77  the human immunodeficiency virus, or its antigen or antibody,
   78  without first obtaining the informed consent of the person upon
   79  whom the test is being performed, except as specified in
   80  paragraph (h). Informed consent shall be preceded by an
   81  explanation of the right to confidential treatment of
   82  information identifying the subject of the test and the results
   83  of the test to the extent provided by law. Information shall
   84  also be provided on the fact that a positive HIV test result
   85  will be reported to the county health department with sufficient
   86  information to identify the test subject and on the availability
   87  and location of sites at which anonymous testing is performed.
   88  As required in paragraph (3)(c), each county health department
   89  shall maintain a list of sites at which anonymous testing is
   90  performed, including the locations, phone numbers, and hours of
   91  operation of the sites. Consent need not be in writing provided
   92  there is documentation in the medical record that the test has
   93  been explained and the consent has been obtained.
   94         2. In a nonhealth care setting, a provider must obtain the
   95  informed consent of the person upon whom the HIV test is being
   96  performed. Informed consent must be preceded by an explanation
   97  of the right to confidential treatment of information
   98  identifying the subject of the test and the HIV test results as
   99  provided by law.
  100  
  101  The test subject must also be informed that a positive HIV test
  102  result will be reported to the county health department with
  103  sufficient information to identify the test subject and must be
  104  provided with the availability and location of sites at which
  105  anonymous testing is performed. As required in paragraph (3)(c),
  106  each county health department shall maintain a list of sites at
  107  which anonymous HIV testing is performed, including the
  108  locations, telephone numbers, and hours of operation of the
  109  sites.
  110         (b) Except as provided in paragraph (h), informed consent
  111  must be obtained from a legal guardian or other person
  112  authorized by law if when the person:
  113         1. Is not competent, is incapacitated, or is otherwise
  114  unable to make an informed judgment; or
  115         2. Has not reached the age of majority, except as provided
  116  in s. 384.30.
  117         (g) Human immunodeficiency virus test results contained in
  118  the medical records of a hospital licensed under chapter 395 may
  119  be released in accordance with s. 395.3025 without being subject
  120  to the requirements of subparagraph (e)2., subparagraph (e)9.,
  121  or paragraph (f) ; provided the hospital has obtained written
  122  informed consent for the HIV test in accordance with provisions
  123  of this section.
  124         (h) Paragraph (a) does not apply Notwithstanding the
  125  provisions of paragraph (a), informed consent is not required:
  126         1. When testing for sexually transmissible diseases is
  127  required by state or federal law, or by rule including the
  128  following situations:
  129         a. HIV testing pursuant to s. 796.08 of persons convicted
  130  of prostitution or of procuring another to commit prostitution.
  131         b. HIV testing of inmates pursuant to s. 945.355 before
  132  prior to their release from prison by reason of parole,
  133  accumulation of gain-time credits, or expiration of sentence.
  134         c. Testing for HIV by a medical examiner in accordance with
  135  s. 406.11.
  136         d. HIV testing of pregnant women pursuant to s. 384.31.
  137         2. Those exceptions provided for blood, plasma, organs,
  138  skin, semen, or other human tissue pursuant to s. 381.0041.
  139         3. For the performance of an HIV-related test by licensed
  140  medical personnel in bona fide medical emergencies if when the
  141  test results are necessary for medical diagnostic purposes to
  142  provide appropriate emergency care or treatment to the person
  143  being tested and the patient is unable to consent, as supported
  144  by documentation in the medical record. Notification of test
  145  results in accordance with paragraph (c) is required.
  146         4. For the performance of an HIV-related test by licensed
  147  medical personnel for medical diagnosis of acute illness if
  148  where, in the opinion of the attending physician, providing
  149  notification obtaining informed consent would be detrimental to
  150  the patient, as supported by documentation in the medical
  151  record, and the test results are necessary for medical
  152  diagnostic purposes to provide appropriate care or treatment to
  153  the person being tested. Notification of test results in
  154  accordance with paragraph (c) is required if it would not be
  155  detrimental to the patient. This subparagraph does not authorize
  156  the routine testing of patients for HIV infection without
  157  notification informed consent.
  158         5. If When HIV testing is performed as part of an autopsy
  159  for which consent was obtained pursuant to s. 872.04.
  160         6. For the performance of an HIV test upon a defendant
  161  pursuant to the victim’s request in a prosecution for any type
  162  of sexual battery where a blood sample is taken from the
  163  defendant voluntarily, pursuant to court order for any purpose,
  164  or pursuant to the provisions of s. 775.0877, s. 951.27, or s.
  165  960.003; however, the results of an any HIV test performed shall
  166  be disclosed solely to the victim and the defendant, except as
  167  provided in ss. 775.0877, 951.27, and 960.003.
  168         7. If When an HIV test is mandated by court order.
  169         8. For epidemiological research pursuant to s. 381.0031,
  170  for research consistent with institutional review boards created
  171  by 45 C.F.R. part 46, or for the performance of an HIV-related
  172  test for the purpose of research, if the testing is performed in
  173  a manner by which the identity of the test subject is not known
  174  and may not be retrieved by the researcher.
  175         9. If When human tissue is collected lawfully without the
  176  consent of the donor for corneal removal as authorized by s.
  177  765.5185 or enucleation of the eyes as authorized by s. 765.519.
  178         10. For the performance of an HIV test upon an individual
  179  who comes into contact with medical personnel in such a way that
  180  a significant exposure has occurred during the course of
  181  employment, or within the scope of practice, or during the
  182  course of providing emergency medical assistance to the
  183  individual and where a blood sample is available that was taken
  184  from that individual voluntarily by medical personnel for other
  185  purposes. The term “medical personnel” includes a licensed or
  186  certified health care professional; an employee of a health care
  187  professional or health care facility; employees of a laboratory
  188  licensed under chapter 483; personnel of a blood bank or plasma
  189  center; a medical student or other student who is receiving
  190  training as a health care professional at a health care
  191  facility; and a paramedic or emergency medical technician
  192  certified by the department to perform life-support procedures
  193  under s. 401.23.
  194         a. The occurrence of a significant exposure must be
  195  documented by medical personnel under the supervision of a
  196  licensed physician and recorded only in the personal record of
  197  the medical personnel Prior to performance of an HIV test on a
  198  voluntarily obtained blood sample, the individual from whom the
  199  blood was obtained shall be requested to consent to the
  200  performance of the test and to the release of the results. If
  201  consent cannot be obtained within the time necessary to perform
  202  the HIV test and begin prophylactic treatment of the exposed
  203  medical personnel, all information concerning the performance of
  204  an HIV test and any HIV test result shall be documented only in
  205  the medical personnel’s record unless the individual gives
  206  written consent to entering this information on the individual’s
  207  medical record.
  208         b. Reasonable attempts to locate the individual and to
  209  obtain consent shall be made, and all attempts must be
  210  documented. If the individual cannot be found or is incapable of
  211  providing consent, an HIV test may be conducted on the available
  212  blood sample. If the individual does not voluntarily consent to
  213  the performance of an HIV test, the individual shall be informed
  214  that an HIV test will be performed, and counseling shall be
  215  furnished as provided in this section. However, HIV testing
  216  shall be conducted only after appropriate medical personnel
  217  under the supervision of a licensed physician documents, in the
  218  medical record of the medical personnel, that there has been a
  219  significant exposure and that, in accordance with the written
  220  protocols based on the National Centers for Disease Control and
  221  Prevention guidelines on HIV postexposure prophylaxis and in the
  222  physician’s medical judgment, the information is medically
  223  necessary to determine the course of treatment for the medical
  224  personnel.
  225         b.c. Costs of an any HIV test of a blood sample performed
  226  with or without the consent of the individual, as provided in
  227  this subparagraph, shall be borne by the medical personnel or
  228  the employer of the medical personnel. However, costs of testing
  229  or treatment not directly related to the initial HIV tests or
  230  costs of subsequent testing or treatment may not be borne by the
  231  medical personnel or the employer of the medical personnel.
  232         c.d. In order to use utilize the provisions of this
  233  subparagraph, the medical personnel must either be tested for
  234  HIV pursuant to this section or provide the results of an HIV
  235  test taken within 6 months before prior to the significant
  236  exposure if such test results are negative.
  237         d.If the source of the exposure is not available and will
  238  not voluntarily present to a health facility to be tested for
  239  HIV, the medical personnel or the employer of such person acting
  240  on behalf of the employee may seek a court order directing the
  241  source of the exposure to submit to HIV testing. A sworn
  242  statement by a physician licensed under chapter 458 or chapter
  243  459 that a significant exposure has occurred and that, in the
  244  physician’s medical judgment, testing is medically necessary to
  245  determine the course of treatment constitutes probable cause for
  246  the issuance of an order by the court. The results of the test
  247  shall be released to the source of the exposure and to the
  248  person who experienced the exposure.
  249         e. A person who receives the results of an HIV test
  250  pursuant to this subparagraph shall maintain the confidentiality
  251  of the information received and of the persons tested. Such
  252  confidential information is exempt from s. 119.07(1).
  253         f. If the source of the exposure will not voluntarily
  254  submit to HIV testing and a blood sample is not available, the
  255  medical personnel or the employer of such person acting on
  256  behalf of the employee may seek a court order directing the
  257  source of the exposure to submit to HIV testing. A sworn
  258  statement by a physician licensed under chapter 458 or chapter
  259  459 that a significant exposure has occurred and that, in the
  260  physician’s medical judgment, testing is medically necessary to
  261  determine the course of treatment constitutes probable cause for
  262  the issuance of an order by the court. The results of the test
  263  shall be released to the source of the exposure and to the
  264  person who experienced the exposure.
  265         11. For the performance of an HIV test upon an individual
  266  who comes into contact with nonmedical medical personnel in such
  267  a way that a significant exposure has occurred during the course
  268  of employment or within the scope of practice of the medical
  269  personnel while the nonmedical medical personnel provides
  270  emergency medical assistance during a medical emergency
  271  treatment to the individual; or notwithstanding s. 384.287, an
  272  individual who comes into contact with nonmedical personnel in
  273  such a way that a significant exposure has occurred while the
  274  nonmedical personnel provides emergency medical assistance
  275  during a medical emergency. For the purposes of this
  276  subparagraph, a medical emergency means an emergency medical
  277  condition outside of a hospital or health care facility that
  278  provides physician care. The test may be performed only during
  279  the course of treatment for the medical emergency.
  280         a. The occurrence of a significant exposure shall be
  281  documented by medical personnel under the supervision of a
  282  licensed physician and recorded only in the personal record of
  283  the nonmedical personnel An individual who is capable of
  284  providing consent shall be requested to consent to an HIV test
  285  prior to the testing. If consent cannot be obtained within the
  286  time necessary to perform the HIV test and begin prophylactic
  287  treatment of the exposed medical personnel and nonmedical
  288  personnel, all information concerning the performance of an HIV
  289  test and its result, shall be documented only in the medical
  290  personnel’s or nonmedical personnel’s record unless the
  291  individual gives written consent to entering this information on
  292  the individual’s medical record.
  293         b. HIV testing shall be conducted only after appropriate
  294  medical personnel under the supervision of a licensed physician
  295  documents, in the medical record of the medical personnel or
  296  nonmedical personnel, that there has been a significant exposure
  297  and that, in accordance with the written protocols based on the
  298  National Centers for Disease Control and Prevention guidelines
  299  on HIV postexposure prophylaxis and in the physician’s medical
  300  judgment, the information is medically necessary to determine
  301  the course of treatment for the medical personnel or nonmedical
  302  personnel.
  303         b.c. Costs of any HIV test performed with or without the
  304  consent of the individual, as provided in this subparagraph,
  305  shall be borne by the nonmedical medical personnel or the
  306  employer of the medical personnel or nonmedical personnel.
  307  However, costs of testing or treatment not directly related to
  308  the initial HIV tests or costs of subsequent testing or
  309  treatment may not be borne by the nonmedical medical personnel
  310  or the employer of the medical personnel or nonmedical
  311  personnel.
  312         c.d.For In order to utilize the provisions of this
  313  subparagraph to be applicable, the medical personnel or
  314  nonmedical personnel must shall be tested for HIV under pursuant
  315  to this section or must shall provide the results of an HIV test
  316  taken within 6 months before prior to the significant exposure
  317  if such test results are negative.
  318         d. If the source of the exposure is not available and will
  319  not voluntarily present to a health facility to be tested for
  320  HIV, the nonmedical personnel or the employer of the nonmedical
  321  personnel acting on behalf of the employee may seek a court
  322  order directing the source of the exposure to submit to HIV
  323  testing. A sworn statement by a physician licensed under chapter
  324  458 or chapter 459 that a significant exposure has occurred and
  325  that, in the physician’s medical judgment, HIV testing is
  326  medically necessary to determine the course of treatment
  327  constitutes probable cause for the issuance of an order by the
  328  court. The results of the HIV test shall be released to the
  329  source of the exposure and to the person who experienced the
  330  exposure.
  331         e. A person who receives the results of an HIV test
  332  pursuant to this subparagraph shall maintain the confidentiality
  333  of the information received and of the persons tested. Such
  334  confidential information is exempt from s. 119.07(1).
  335         f. If the source of the exposure will not voluntarily
  336  submit to HIV testing and a blood sample was not obtained during
  337  treatment for the medical emergency, the medical personnel, the
  338  employer of the medical personnel acting on behalf of the
  339  employee, or the nonmedical personnel may seek a court order
  340  directing the source of the exposure to submit to HIV testing. A
  341  sworn statement by a physician licensed under chapter 458 or
  342  chapter 459 that a significant exposure has occurred and that,
  343  in the physician’s medical judgment, testing is medically
  344  necessary to determine the course of treatment constitutes
  345  probable cause for the issuance of an order by the court. The
  346  results of the test shall be released to the source of the
  347  exposure and to the person who experienced the exposure.
  348         12. For the performance of an HIV test by the medical
  349  examiner or attending physician upon an individual who expired
  350  or could not be resuscitated while receiving emergency medical
  351  assistance or care and who was the source of a significant
  352  exposure to medical or nonmedical personnel providing such
  353  assistance or care.
  354         a. HIV testing may be conducted only after appropriate
  355  medical personnel under the supervision of a licensed physician
  356  documents in the medical record of the medical personnel or
  357  nonmedical personnel that there has been a significant exposure
  358  and that, in accordance with the written protocols based on the
  359  National Centers for Disease Control and Prevention guidelines
  360  on HIV postexposure prophylaxis and in the physician’s medical
  361  judgment, the information is medically necessary to determine
  362  the course of treatment for the medical personnel or nonmedical
  363  personnel.
  364         b. Costs of an any HIV test performed under this
  365  subparagraph may not be charged to the deceased or to the family
  366  of the deceased person.
  367         c. For the provisions of this subparagraph to be
  368  applicable, the medical personnel or nonmedical personnel must
  369  be tested for HIV under this section or must provide the results
  370  of an HIV test taken within 6 months before the significant
  371  exposure if such test results are negative.
  372         d. A person who receives the results of an HIV test
  373  pursuant to this subparagraph shall comply with paragraph (e).
  374         13. For the performance of an HIV-related test medically
  375  indicated by licensed medical personnel for medical diagnosis of
  376  a hospitalized infant as necessary to provide appropriate care
  377  and treatment of the infant if when, after a reasonable attempt,
  378  a parent cannot be contacted to provide consent. The medical
  379  records of the infant must shall reflect the reason consent of
  380  the parent was not initially obtained. Test results shall be
  381  provided to the parent when the parent is located.
  382         14. For the performance of HIV testing conducted to monitor
  383  the clinical progress of a patient previously diagnosed to be
  384  HIV positive.
  385         15. For the performance of repeated HIV testing conducted
  386  to monitor possible conversion from a significant exposure.
  387         (4) HUMAN IMMUNODEFICIENCY VIRUS TESTING REQUIREMENTS;
  388  REGISTRATION WITH THE DEPARTMENT OF HEALTH; EXEMPTIONS FROM
  389  REGISTRATION.—A No county health department and any no other
  390  person in this state offering HIV tests in a nonhealth care
  391  setting may not shall conduct or hold themselves out to the
  392  public as conducting a testing program for acquired immune
  393  deficiency syndrome or human immunodeficiency virus status
  394  without first registering with the Department of Health,
  395  reregistering each year, complying with all other applicable
  396  provisions of state law, and meeting the following requirements:
  397         (d) A program in a nonhealth care setting must meet all
  398  informed consent criteria provided in subparagraph (2)(a)2 The
  399  program must meet all the informed consent criteria contained in
  400  subsection (2).
  401         Section 2. Subsection (2) of section 456.032, Florida
  402  Statutes, is amended to read:
  403         456.032 Hepatitis B or HIV carriers.—
  404         (2) Any person licensed by the department and any other
  405  person employed by a health care facility who contracts a blood
  406  borne infection shall have a rebuttable presumption that the
  407  illness was contracted in the course and scope of his or her
  408  employment, provided that the person, as soon as practicable,
  409  reports to the person’s supervisor or the facility’s risk
  410  manager any significant exposure, as that term is defined in s.
  411  381.004(1)(f) 381.004(1)(c), to blood or body fluids. The
  412  employer may test the blood or body fluid to determine if it is
  413  infected with the same disease contracted by the employee. The
  414  employer may rebut the presumption by the preponderance of the
  415  evidence. Except as expressly provided in this subsection, there
  416  shall be no presumption that a blood-borne infection is a job
  417  related injury or illness.
  418         Section 3. This act shall take effect July 1, 2015.
  419  
  420  ================= T I T L E  A M E N D M E N T ================
  421  And the title is amended as follows:
  422         Delete everything before the enacting clause
  423  and insert:
  424                        A bill to be entitled                      
  425         An act relating to HIV testing; amending s. 381.004,
  426         F.S.; revising and providing definitions; specifying
  427         the notification and consent procedures for performing
  428         an HIV test in a health care setting and a nonhealth
  429         care setting; amending s. 456.032, F.S.; conforming a
  430         cross-reference; providing an effective date.