Bill Text: FL S0512 | 2015 | Regular Session | Comm Sub
Bill Title: HIV Testing
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2015-04-24 - Laid on Table, companion bill(s) passed, see CS/CS/HB 321 (Ch. 2015-110) [S0512 Detail]
Download: Florida-2015-S0512-Comm_Sub.html
Florida Senate - 2015 CS for CS for SB 512 By the Committees on Fiscal Policy; and Health Policy; and Senators Thompson and Soto 594-04168-15 2015512c2 1 A bill to be entitled 2 An act relating to HIV testing; amending s. 381.004, 3 F.S.; revising and providing definitions; specifying 4 the notification and consent procedures for performing 5 an HIV test in a health care setting and a nonhealth 6 care setting; amending s. 456.032, F.S.; conforming a 7 cross-reference; providing an effective date. 8 9 Be It Enacted by the Legislature of the State of Florida: 10 11 Section 1. Subsection (1) of section 381.004, Florida 12 Statutes, is reordered and amended, and paragraphs (a), (b), 13 (g), and (h) of subsection (2) and paragraphs (d) and (j) of 14 subsection (4) of that section are amended, to read: 15 381.004 HIV testing.— 16 (1) DEFINITIONS.—As used in this section, the term: 17 (a) “Health care setting” means a setting devoted to the 18 diagnosis and care of persons or the provision of medical 19 services to persons, such as county health department clinics, 20 hospitals, urgent care clinics, substance abuse treatment 21 clinics, primary care settings, community clinics, blood banks, 22 mobile medical clinics, and correctional health care facilities. 23 (b)(a)“HIV test” means a test ordered after July 6, 1988, 24 to determine the presence of the antibody or antigen to human 25 immunodeficiency virus or the presence of human immunodeficiency 26 virus infection. 27 (c)(b)“HIV test result” means a laboratory report of a 28 human immunodeficiency virus test result entered into a medical 29 record on or after July 6, 1988, or any report or notation in a 30 medical record of a laboratory report of a human 31 immunodeficiency virus test.As used in this section,The term 32“HIV test result”does not include test results reported to a 33 health care provider by a patient. 34 (d) “Nonhealth care setting” means a site that conducts HIV 35 testing for the sole purpose of identifying HIV infection but 36 does not provide medical treatment. The term includes community 37 based organizations, outreach settings, county health department 38 HIV testing programs, and mobile clinics. 39 (f)(c)“Significant exposure” means: 40 1. Exposure to blood or body fluids through needlestick, 41 instruments, or sharps; 42 2. Exposure of mucous membranes to visible blood or body 43 fluids, to which universal precautions apply according to the 44 National Centers for Disease Control and Prevention, including, 45 without limitations, the following body fluids: 46 a. Blood. 47 b. Semen. 48 c. Vaginal secretions. 49 d. CerebrospinalCerebro-spinalfluid (CSF). 50 e. Synovial fluid. 51 f. Pleural fluid. 52 g. Peritoneal fluid. 53 h. Pericardial fluid. 54 i. Amniotic fluid. 55 j. Laboratory specimens that contain HIV (e.g., suspensions 56 of concentrated virus); or 57 3. Exposure of skin to visible blood or body fluids, 58 especially when the exposed skin is chapped, abraded, or 59 afflicted with dermatitis or the contact is prolonged or 60 involving an extensive area. 61 (e)(d)“Preliminary HIV test” means an antibody or 62 antibody-antigen screening test, such as theenzyme-linked63 immunosorbent assays (IA), or a rapid test approved by the 64 United States Food and Drug Administration(ELISAs) or the65Single-Use Diagnostic System (SUDS). 66 (g)(e)“Test subject” or “subject of the test” means the 67 person upon whom an HIV test is performed, or the person who has 68 legal authority to make health care decisions for the test 69 subject. 70 (2) HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED CONSENT; 71 RESULTS; COUNSELING; CONFIDENTIALITY.— 72 (a) Before performing an HIV test: 73 1. In a health care setting, the person to be tested must 74 be notified orally or in writing that the HIV test is planned 75 and that he or she has the right to decline the test. If the 76 person to be tested declines the test, such decision shall be 77 documented in the person’s medical record. A person who has 78 signed a general consent form for medical care is not required 79 to sign or otherwise provide a separate consent for an HIV test 80 during the period in which the general consent form is in effect 81No person in this stateshall order a test designed to identify82the humanimmunodeficiency virus, or its antigen or antibody,83withoutfirst obtaining the informed consent of the person upon84whom thetest is being performed, except as specified in85paragraph (h).Informed consent shall be preceded by an86explanation of theright to confidential treatment of87information identifying thesubject of the test and the results88of the test to the extentprovided by law. Information shall89also be provided on the factthat a positive HIV test result90will be reported to the countyhealth department with sufficient91information to identify thetest subject and on the availability92and location of sites atwhich anonymous testing is performed.93As required in paragraph(3)(c), each county health department94shall maintain a list ofsites at which anonymous testing is95performed, including thelocations, phone numbers, and hours of96operation of the sites.Consent need not be in writing provided97there is documentationin the medical record that the test has98been explained and theconsent has been obtained. 99 2. In a nonhealth care setting, a provider must obtain the 100 informed consent of the person upon whom the HIV test is being 101 performed. Informed consent must be preceded by an explanation 102 of the right to confidential treatment of information 103 identifying the subject of the test and the HIV test results as 104 provided by law. 105 106 The test subject must also be informed that a positive HIV test 107 result will be reported to the county health department with 108 sufficient information to identify the test subject and must 109 also be provided with the availability and location of sites at 110 which anonymous testing is performed. As required in paragraph 111 (3)(c), each county health department shall maintain a list of 112 sites at which anonymous HIV testing is performed, including the 113 locations, telephone numbers, and hours of operation of the 114 sites. 115 (b) Except as provided in paragraph (h), informed consent 116 must be obtained from a legal guardian or other person 117 authorized by law ifwhenthe person: 118 1. Is not competent, is incapacitated, or is otherwise 119 unable to make an informed judgment; or 120 2. Has not reached the age of majority, except as provided 121 in s. 384.30. 122 (g) Human immunodeficiency virus test results contained in 123 the medical records of a hospital licensed under chapter 395 may 124 be released in accordance with s. 395.3025 without being subject 125 tothe requirements ofsubparagraph (e)2., subparagraph (e)9., 126 or paragraph (f); provided the hospital hasobtainedwritten127informed consent for the HIV test in accordance withprovisions128of this section. 129 (h) Paragraph (a) does not applyNotwithstanding the130provisions of paragraph (a),informed consent is not required: 131 1. When testing for sexually transmissible diseases is 132 required by state or federal law, or by rule including the 133 following situations: 134 a. HIV testing pursuant to s. 796.08 of persons convicted 135 of prostitution or of procuring another to commit prostitution. 136 b. HIV testing of inmates pursuant to s. 945.355 before 137prior totheir release from prison by reason of parole, 138 accumulation of gain-time credits, or expiration of sentence. 139 c. Testing for HIV by a medical examiner in accordance with 140 s. 406.11. 141 d. HIV testing of pregnant women pursuant to s. 384.31. 142 2. Those exceptions provided for blood, plasma, organs, 143 skin, semen, or other human tissue pursuant to s. 381.0041. 144 3. For the performance of an HIV-related test by licensed 145 medical personnel in bona fide medical emergencies ifwhenthe 146 test results are necessary for medical diagnostic purposes to 147 provide appropriate emergency care or treatment to the person 148 being tested and the patient is unable to consent, as supported 149 by documentation in the medical record. Notification of test 150 results in accordance with paragraph (c) is required. 151 4. For the performance of an HIV-related test by licensed 152 medical personnel for medical diagnosis of acute illness if 153where, in the opinion of the attending physician, providing 154 notificationobtaining informed consentwould be detrimental to 155 the patient, as supported by documentation in the medical 156 record, and the test results are necessary for medical 157 diagnostic purposes to provide appropriate care or treatment to 158 the person being tested. Notification of test results in 159 accordance with paragraph (c) is required if it would not be 160 detrimental to the patient. This subparagraph does not authorize 161 the routine testing of patients for HIV infection without 162 notificationinformed consent. 163 5. IfWhenHIV testing is performed as part of an autopsy 164 for which consent was obtained pursuant to s. 872.04. 165 6. For the performance of an HIV test upon a defendant 166 pursuant to the victim’s request in a prosecution for any type 167 of sexual battery where a blood sample is taken from the 168 defendant voluntarily, pursuant to court order for any purpose, 169 or pursuant tothe provisions ofs. 775.0877, s. 951.27, or s. 170 960.003; however, the results of ananyHIV test performed shall 171 be disclosed solely to the victim and the defendant, except as 172 provided in ss. 775.0877, 951.27, and 960.003. 173 7. IfWhenan HIV test is mandated by court order. 174 8. For epidemiological research pursuant to s. 381.0031, 175 for research consistent with institutional review boards created 176 by 45 C.F.R. part 46, or for the performance of an HIV-related 177 test for the purpose of research, if the testing is performed in 178 a manner by which the identity of the test subject is not known 179 and may not be retrieved by the researcher. 180 9. IfWhenhuman tissue is collected lawfully without the 181 consent of the donor for corneal removal as authorized by s. 182 765.5185 or enucleation of the eyes as authorized by s. 765.519. 183 10. For the performance of an HIV test upon an individual 184 who comes into contact with medical personnel in such a way that 185 a significant exposure has occurred during the course of 186 employment,orwithin the scope of practice, or during the 187 course of providing emergency medical assistance to the 188 individualand where a bloodsample is availablethat was taken189from that individualvoluntarily by medical personnel for other190purposes. The term “medical personnel” includes a licensed or 191 certified health care professional; an employee of a health care 192 professional or health care facility; employees of a laboratory 193 licensed under chapter 483; personnel of a blood bank or plasma 194 center; a medical student or other student who is receiving 195 training as a health care professional at a health care 196 facility; and a paramedic or emergency medical technician 197 certified by the department to perform life-support procedures 198 under s. 401.23. 199 a. The occurrence of a significant exposure must be 200 documented by medical personnel under the supervision of a 201 licensed physician and recorded only in the personal record of 202 the medical personnelPrior to performance of an HIV teston a203voluntarily obtained blood sample, the individual from whomthe204blood was obtained shall be requested to consent to the205performance of the test and to the release of the results. If206consent cannot be obtained within the time necessary to perform207the HIV test and begin prophylactic treatment of the exposed208medical personnel, all information concerning the performance of209an HIV test and any HIV test result shall be documented only in210the medical personnel’s record unless the individual gives211written consent to entering this information on the individual’s212medical record. 213b. Reasonable attempts to locate the individual and to214obtain consent shall be made, and all attempts must be215documented. If the individual cannot be found or is incapable of216providing consent, an HIV test may be conducted on the available217blood sample. If the individual does not voluntarily consent to218the performance of an HIV test, the individual shall be informed219that an HIV test will be performed, and counseling shall be220furnished as provided in this section. However, HIV testing221shall be conducted only after appropriate medical personnel222under the supervision of a licensed physician documents, in the223medical record of the medical personnel, that there has been a224significant exposure and that, in accordance with the written225protocols based on the National Centers for Disease Control and226Prevention guidelines on HIV postexposure prophylaxis and in the227physician’s medical judgment, the information is medically228necessary to determine the course of treatment for the medical229personnel.230 b.c.Costs of ananyHIV testof a blood sample performed231with or without the consent of the individual, as provided in232this subparagraph,shall be borne by the medical personnel or 233 the employer of the medical personnel. However, costs of testing 234 or treatment not directly related to the initial HIV tests or 235 costs of subsequent testing or treatment may not be borne by the 236 medical personnel or the employer of the medical personnel. 237 c.d.In order to useutilizethe provisions of this 238 subparagraph, the medical personnel musteitherbe tested for 239 HIV pursuant to this section or provide the results of an HIV 240 test taken within 6 months beforeprior tothe significant 241 exposure if such test results are negative. 242 d. If the source of the exposure is not available and will 243 not voluntarily present to a health facility to be tested for 244 HIV, the medical personnel or the employer of such person acting 245 on behalf of the employee may seek a court order directing the 246 source of the exposure to submit to HIV testing. A sworn 247 statement by a physician licensed under chapter 458 or chapter 248 459 that a significant exposure has occurred and that, in the 249 physician’s medical judgment, testing is medically necessary to 250 determine the course of treatment constitutes probable cause for 251 the issuance of an order by the court. The results of the test 252 shall be released to the source of the exposure and to the 253 person who experienced the exposure. 254 e. A person who receives the results of an HIV test 255 pursuant to this subparagraph shall maintain the confidentiality 256 of the information received and of the persons tested. Such 257 confidential information is exempt from s. 119.07(1). 258f.If the source of the exposure will not voluntarily259submit to HIV testing and a blood sample is not available, the260medical personnel or the employer of such person acting on261behalf of the employee may seek a court order directing the262source of the exposure to submit to HIV testing. A sworn263statement by a physician licensed under chapter 458 or chapter264459 that a significant exposure has occurred and that, in the265physician’s medical judgment, testing is medically necessary to266determine the course of treatment constitutes probable cause for267the issuance of an order by the court. The results of the test268shall be released to the source of the exposure and to the269person who experienced the exposure.270 11. For the performance of an HIV test upon an individual 271 who comes into contact with nonmedicalmedicalpersonnel in such 272 a way that a significant exposure has occurredduring the course273ofemployment or within the scope of practice of the medical274personnelwhile the nonmedicalmedicalpersonnel provides 275 emergency medical assistance during a medical emergency 276treatment to the individual; or notwithstanding s. 384.287, an277individual who comes into contact with nonmedical personnel in278such a way that a significant exposure has occurred while the279nonmedical personnel provides emergency medical assistance280during a medical emergency. For the purposes of this 281 subparagraph, a medical emergency means an emergency medical 282 condition outside of a hospital or health care facility that 283 provides physician care. The test may be performed only during 284 the course of treatment for the medical emergency. 285 a. The occurrence of a significant exposure shall be 286 documented by medical personnel under the supervision of a 287 licensed physician and recorded only in the personal record of 288 the nonmedical personnelAn individual who is capable of289providing consent shallbe requested to consent to an HIV test290prior to thetesting. If consent cannot be obtained within the291time necessaryto perform the HIV test and begin prophylactic292treatment of theexposed medical personnel and nonmedical293personnel, allinformation concerning the performance of an HIV294test and itsresult, shall be documented only in the medical295personnel’s ornonmedical personnel’s record unless the296individual giveswritten consent to entering this informationon297theindividual’s medical record. 298b. HIV testing shall be conducted only after appropriate299medical personnel under the supervision of a licensed physician300documents, in the medical record of the medical personnel or301nonmedical personnel, that there has been a significant exposure302and that, in accordance with the written protocols based on the303National Centers for Disease Control and Prevention guidelines304on HIV postexposure prophylaxis and in the physician’s medical305judgment, the information is medically necessary to determine306the course of treatment for the medical personnel or nonmedical307personnel.308 b.c.Costs of any HIV testperformed with or without the309consent of the individual, as provided in this subparagraph,310 shall be borne by the nonmedicalmedicalpersonnel or the 311 employer of themedical personnel ornonmedical personnel. 312 However, costs of testing or treatment not directly related to 313 the initial HIV tests or costs of subsequent testing or 314 treatment may not be borne by the nonmedicalmedicalpersonnel 315 or the employer of themedicalpersonnel ornonmedical 316 personnel. 317 c.d.ForIn order toutilizethe provisions ofthis 318 subparagraph to be applicable, themedical personnel or319 nonmedical personnel mustshallbe tested for HIV underpursuant320tothis section or mustshallprovide the results of an HIV test 321 taken within 6 months beforeprior tothe significant exposure 322 if such test results are negative. 323 d. If the source of the exposure is not available and will 324 not voluntarily present to a health facility to be tested for 325 HIV, the nonmedical personnel or the employer of the nonmedical 326 personnel acting on behalf of the employee may seek a court 327 order directing the source of the exposure to submit to HIV 328 testing. A sworn statement by a physician licensed under chapter 329 458 or chapter 459 that a significant exposure has occurred and 330 that, in the physician’s medical judgment, HIV testing is 331 medically necessary to determine the course of treatment 332 constitutes probable cause for the issuance of an order by the 333 court. The results of the HIV test shall be released to the 334 source of the exposure and to the person who experienced the 335 exposure. 336 e. A person who receives the results of an HIV test 337 pursuant to this subparagraph shall maintain the confidentiality 338 of the information received and of the persons tested. Such 339 confidential information is exempt from s. 119.07(1). 340f. If the source of the exposure will not voluntarily341submit to HIV testing and a blood sample was not obtained during342treatment for the medical emergency, the medical personnel, the343employer of the medical personnel acting on behalf of the344employee, or the nonmedical personnel may seek a court order345directing the source of the exposure to submit to HIV testing. A346sworn statement by a physician licensed under chapter 458 or347chapter 459 that a significant exposure has occurred and that,348in the physician’s medical judgment, testing is medically349necessary to determine the course of treatment constitutes350probable cause for the issuance of an order by the court. The351results of the test shall be released to the source of the352exposure and to the person who experienced the exposure.353 12. For the performance of an HIV test by the medical 354 examiner or attending physician upon an individual who expired 355 or could not be resuscitated while receiving emergency medical 356 assistance or care and who was the source of a significant 357 exposure to medical or nonmedical personnel providing such 358 assistance or care. 359 a. HIV testing may be conducted only after appropriate 360 medical personnel under the supervision of a licensed physician 361 documents in the medical record of the medical personnel or 362 nonmedical personnel that there has been a significant exposure 363 and that, in accordance with the written protocols based on the 364 National Centers for Disease Control and Prevention guidelines 365 on HIV postexposure prophylaxis and in the physician’s medical 366 judgment, the information is medically necessary to determine 367 the course of treatment for the medical personnel or nonmedical 368 personnel. 369 b. Costs of ananyHIV test performed under this 370 subparagraph may not be charged to the deceased or to the family 371 of the deceased person. 372 c. Forthe provisions ofthis subparagraph to be 373 applicable, the medical personnel or nonmedical personnel must 374 be tested for HIV under this section or must provide the results 375 of an HIV test taken within 6 months before the significant 376 exposure if such test results are negative. 377 d. A person who receives the results of an HIV test 378 pursuant to this subparagraph shall comply with paragraph (e). 379 13. For the performance of an HIV-related test medically 380 indicated by licensed medical personnel for medical diagnosis of 381 a hospitalized infant as necessary to provide appropriate care 382 and treatment of the infant ifwhen, after a reasonable attempt, 383 a parent cannot be contacted to provide consent. The medical 384 records of the infant mustshallreflect the reason consent of 385 the parent was not initially obtained. Test results shall be 386 provided to the parent when the parent is located. 387 14. For the performance of HIV testing conducted to monitor 388 the clinical progress of a patient previously diagnosed to be 389 HIV positive. 390 15. For the performance of repeated HIV testing conducted 391 to monitor possible conversion from a significant exposure. 392 (4) HUMAN IMMUNODEFICIENCY VIRUS TESTING REQUIREMENTS; 393 REGISTRATION WITH THE DEPARTMENT OF HEALTH; EXEMPTIONS FROM 394 REGISTRATION.—No county health department and no other person in 395 this state shall conduct or hold themselves out to the public as 396 conducting a testing program for acquired immune deficiency 397 syndrome or human immunodeficiency virus status without first 398 registering with the Department of Health, reregistering each 399 year, complying with all other applicable provisions of state 400 law, and meeting the following requirements: 401 (d) The program must meet all the requirements ofinformed402consent criteria contained insubsection (2). 403 (j) Nothing in this subsection shall be construed to 404 require a facility licensed under chapter 395 or chapter 483 or 405 a person licensed under the provisions of chapter 457, chapter 406 458, chapter 459, chapter 460, chapter 461, chapter 466, or 407 chapter 467 to register with the Department of Health or to 408 comply with the requirements of this subsection if a testing 409 program is part of routine medical care or if the facility or 410 person does not conspicuously advertise to significant numbers 411 of the generalhe or she does not advertise or hold himself or412herself out to thepublic as conducting testing programs for 413 human immunodeficiency virus infection or specializing in such 414 testing. 415 Section 2. Subsection (2) of section 456.032, Florida 416 Statutes, is amended to read: 417 456.032 Hepatitis B or HIV carriers.— 418 (2) Any person licensed by the department and any other 419 person employed by a health care facility who contracts a blood 420 borne infection shall have a rebuttable presumption that the 421 illness was contracted in the course and scope of his or her 422 employment, provided that the person, as soon as practicable, 423 reports to the person’s supervisor or the facility’s risk 424 manager any significant exposure, as that term is defined in s. 425 381.004(1)(f)381.004(1)(c), to blood or body fluids. The 426 employer may test the blood or body fluid to determine if it is 427 infected with the same disease contracted by the employee. The 428 employer may rebut the presumption by the preponderance of the 429 evidence. Except as expressly provided in this subsection, there 430 shall be no presumption that a blood-borne infection is a job 431 related injury or illness. 432 Section 3. This act shall take effect July 1, 2015.