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.