September 30, 2020
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_h1399__
HB 1399

1
A bill to be entitled
2An act relating to sexually transmissible disease testing
3and reporting; amending s. 381.004, F.S.; revising
4criteria for releasing preliminary HIV test results;
5providing that informed consent is not required to test
6pregnant women for HIV; amending s. 384.25, F.S.;
7requiring certain positive test results to be reported to
8the Department of Health within a specified period of
9time; revising provisions relating to method of reporting
10of test results, time period during which the reports must
11be made, content of reports, enforcement requirements, and
12followup activities and requiring the department to adopt
13rules therefor; deleting requirement that the department
14submit certain reports; amending s. 384.31, F.S.;
15requiring informed consent of a pregnant woman before
16performing a test for sexually transmitted diseases;
17requiring documentation if a pregnant woman declines to be
18tested; deleting provision limiting liability of the
19practitioner attending a patient who declined to be
20tested; providing an effective date.
21
22Be It Enacted by the Legislature of the State of Florida:
23
24     Section 1.  Paragraphs (d) and (h) of subsection (3) of
25section 381.004, Florida Statutes, are amended to read:
26     381.004  HIV testing.--
27     (3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED
28CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--
29     (d)  No positive preliminary test result shall be
30determined as positive, and no positive test result shall be
31revealed to any person, without corroborating or confirmatory
32tests being conducted except in the following situations:
33     1.  Preliminary test results may be released to licensed
34physicians or the medical or nonmedical personnel subject to the
35significant exposure for purposes of subparagraphs (h)10., 11.,
36and 12.
37     2.  Preliminary test results may be released to health care
38providers and to the person tested when decisions about medical
39care or treatment of, or recommendation to, the person tested
40and, in the case of an intrapartum or postpartum woman, when
41care, treatment, or recommendations regarding her newborn,
42cannot await the results of confirmatory testing. Positive
43preliminary HIV test results shall not be characterized to the
44patient as a diagnosis of HIV infection. Justification for the
45use of preliminary test results must be documented in the
46medical record by the health care provider who ordered the test.
47This subparagraph does not authorize the release of preliminary
48test results for the purpose of routine identification of HIV-
49infected individuals or when HIV testing is incidental to the
50preliminary diagnosis or care of a patient.
51     3.  The results of rapid testing technologies shall be
52considered preliminary and may be released in accordance with
53the manufacturer's instructions as approved by the federal Food
54and Drug Administration.
55     4.  Corroborating or confirmatory testing must be conducted
56as followup to a positive preliminary test. Results shall be
57communicated to the patient according to statute regardless of
58the outcome. Except as provided in this section, test results
59are confidential and exempt from the provisions of s. 119.07(1).
60     (h)  Notwithstanding the provisions of paragraph (a),
61informed consent is not required:
62     1.  When testing for sexually transmissible diseases is
63required by state or federal law, or by rule including the
64following situations:
65     a.  HIV testing pursuant to s. 796.08 of persons convicted
66of prostitution or of procuring another to commit prostitution.
67     b.  HIV testing of inmates pursuant to s. 945.355 prior to
68their release from prison by reason of parole, accumulation of
69gain-time credits, or expiration of sentence.
70     c.  Testing for HIV by a medical examiner in accordance
71with s. 406.11.
72     d.  HIV testing of pregnant women pursuant to s. 384.31.
73     2.  Those exceptions provided for blood, plasma, organs,
74skin, semen, or other human tissue pursuant to s. 381.0041.
75     3.  For the performance of an HIV-related test by licensed
76medical personnel in bona fide medical emergencies when the test
77results are necessary for medical diagnostic purposes to provide
78appropriate emergency care or treatment to the person being
79tested and the patient is unable to consent, as supported by
80documentation in the medical record. Notification of test
81results in accordance with paragraph (c) is required.
82     4.  For the performance of an HIV-related test by licensed
83medical personnel for medical diagnosis of acute illness where,
84in the opinion of the attending physician, obtaining informed
85consent would be detrimental to the patient, as supported by
86documentation in the medical record, and the test results are
87necessary for medical diagnostic purposes to provide appropriate
88care or treatment to the person being tested. Notification of
89test results in accordance with paragraph (c) is required if it
90would not be detrimental to the patient. This subparagraph does
91not authorize the routine testing of patients for HIV infection
92without informed consent.
93     5.  When HIV testing is performed as part of an autopsy for
94which consent was obtained pursuant to s. 872.04.
95     6.  For the performance of an HIV test upon a defendant
96pursuant to the victim's request in a prosecution for any type
97of sexual battery where a blood sample is taken from the
98defendant voluntarily, pursuant to court order for any purpose,
99or pursuant to the provisions of s. 775.0877, s. 951.27, or s.
100960.003; however, the results of any HIV test performed shall be
101disclosed solely to the victim and the defendant, except as
102provided in ss. 775.0877, 951.27, and 960.003.
103     7.  When an HIV test is mandated by court order.
104     8.  For epidemiological research pursuant to s. 381.0032,
105for research consistent with institutional review boards created
106by 45 C.F.R. part 46, or for the performance of an HIV-related
107test for the purpose of research, if the testing is performed in
108a manner by which the identity of the test subject is not known
109and may not be retrieved by the researcher.
110     9.  When human tissue is collected lawfully without the
111consent of the donor for corneal removal as authorized by s.
112765.5185 or enucleation of the eyes as authorized by s. 765.519.
113     10.  For the performance of an HIV test upon an individual
114who comes into contact with medical personnel in such a way that
115a significant exposure has occurred during the course of
116employment or within the scope of practice and where a blood
117sample is available that was taken from that individual
118voluntarily by medical personnel for other purposes. The term
119"medical personnel" includes a licensed or certified health care
120professional; an employee of a health care professional or
121health care facility; employees of a laboratory licensed under
122chapter 483; personnel of a blood bank or plasma center; a
123medical student or other student who is receiving training as a
124health care professional at a health care facility; and a
125paramedic or emergency medical technician certified by the
126department to perform life-support procedures under s. 401.23.
127     a.  Prior to performance of an HIV test on a voluntarily
128obtained blood sample, the individual from whom the blood was
129obtained shall be requested to consent to the performance of the
130test and to the release of the results. The individual's refusal
131to consent and all information concerning the performance of an
132HIV test and any HIV test result shall be documented only in the
133medical personnel's record unless the individual gives written
134consent to entering this information on the individual's medical
135record.
136     b.  Reasonable attempts to locate the individual and to
137obtain consent shall be made, and all attempts must be
138documented. If the individual cannot be found, an HIV test may
139be conducted on the available blood sample. If the individual
140does not voluntarily consent to the performance of an HIV test,
141the individual shall be informed that an HIV test will be
142performed, and counseling shall be furnished as provided in this
143section. However, HIV testing shall be conducted only after a
144licensed physician documents, in the medical record of the
145medical personnel, that there has been a significant exposure
146and that, in the physician's medical judgment, the information
147is medically necessary to determine the course of treatment for
148the medical personnel.
149     c.  Costs of any HIV test of a blood sample performed with
150or without the consent of the individual, as provided in this
151subparagraph, shall be borne by the medical personnel or the
152employer of the medical personnel. However, costs of testing or
153treatment not directly related to the initial HIV tests or costs
154of subsequent testing or treatment shall not be borne by the
155medical personnel or the employer of the medical personnel.
156     d.  In order to utilize the provisions of this
157subparagraph, the medical personnel must either be tested for
158HIV pursuant to this section or provide the results of an HIV
159test taken within 6 months prior to the significant exposure if
160such test results are negative.
161     e.  A person who receives the results of an HIV test
162pursuant to this subparagraph shall maintain the confidentiality
163of the information received and of the persons tested. Such
164confidential information is exempt from s. 119.07(1).
165     f.  If the source of the exposure will not voluntarily
166submit to HIV testing and a blood sample is not available, the
167medical personnel or the employer of such person acting on
168behalf of the employee may seek a court order directing the
169source of the exposure to submit to HIV testing. A sworn
170statement by a physician licensed under chapter 458 or chapter
171459 that a significant exposure has occurred and that, in the
172physician's medical judgment, testing is medically necessary to
173determine the course of treatment constitutes probable cause for
174the issuance of an order by the court. The results of the test
175shall be released to the source of the exposure and to the
176person who experienced the exposure.
177     11.  For the performance of an HIV test upon an individual
178who comes into contact with medical personnel in such a way that
179a significant exposure has occurred during the course of
180employment or within the scope of practice of the medical
181personnel while the medical personnel provides emergency medical
182treatment to the individual; or who comes into contact with
183nonmedical personnel in such a way that a significant exposure
184has occurred while the nonmedical personnel provides emergency
185medical assistance during a medical emergency. For the purposes
186of this subparagraph, a medical emergency means an emergency
187medical condition outside of a hospital or health care facility
188that provides physician care. The test may be performed only
189during the course of treatment for the medical emergency.
190     a.  An individual who is capable of providing consent shall
191be requested to consent to an HIV test prior to the testing. The
192individual's refusal to consent, and all information concerning
193the performance of an HIV test and its result, shall be
194documented only in the medical personnel's record unless the
195individual gives written consent to entering this information on
196the individual's medical record.
197     b.  HIV testing shall be conducted only after a licensed
198physician documents, in the medical record of the medical
199personnel or nonmedical personnel, that there has been a
200significant exposure and that, in the physician's medical
201judgment, the information is medically necessary to determine
202the course of treatment for the medical personnel or nonmedical
203personnel.
204     c.  Costs of any HIV test performed with or without the
205consent of the individual, as provided in this subparagraph,
206shall be borne by the medical personnel or the employer of the
207medical personnel or nonmedical personnel. However, costs of
208testing or treatment not directly related to the initial HIV
209tests or costs of subsequent testing or treatment shall not be
210borne by the medical personnel or the employer of the medical
211personnel or nonmedical personnel.
212     d.  In order to utilize the provisions of this
213subparagraph, the medical personnel or nonmedical personnel
214shall be tested for HIV pursuant to this section or shall
215provide the results of an HIV test taken within 6 months prior
216to the significant exposure if such test results are negative.
217     e.  A person who receives the results of an HIV test
218pursuant to this subparagraph shall maintain the confidentiality
219of the information received and of the persons tested. Such
220confidential information is exempt from s. 119.07(1).
221     f.  If the source of the exposure will not voluntarily
222submit to HIV testing and a blood sample was not obtained during
223treatment for the medical emergency, the medical personnel, the
224employer of the medical personnel acting on behalf of the
225employee, or the nonmedical personnel may seek a court order
226directing the source of the exposure to submit to HIV testing. A
227sworn statement by a physician licensed under chapter 458 or
228chapter 459 that a significant exposure has occurred and that,
229in the physician's medical judgment, testing is medically
230necessary to determine the course of treatment constitutes
231probable cause for the issuance of an order by the court. The
232results of the test shall be released to the source of the
233exposure and to the person who experienced the exposure.
234     12.  For the performance of an HIV test by the medical
235examiner or attending physician upon an individual who expired
236or could not be resuscitated while receiving emergency medical
237assistance or care and who was the source of a significant
238exposure to medical or nonmedical personnel providing such
239assistance or care.
240     a.  HIV testing may be conducted only after a licensed
241physician documents in the medical record of the medical
242personnel or nonmedical personnel that there has been a
243significant exposure and that, in the physician's medical
244judgment, the information is medically necessary to determine
245the course of treatment for the medical personnel or nonmedical
246personnel.
247     b.  Costs of any HIV test performed under this subparagraph
248may not be charged to the deceased or to the family of the
249deceased person.
250     c.  For the provisions of this subparagraph to be
251applicable, the medical personnel or nonmedical personnel must
252be tested for HIV under this section or must provide the results
253of an HIV test taken within 6 months before the significant
254exposure if such test results are negative.
255     d.  A person who receives the results of an HIV test
256pursuant to this subparagraph shall comply with paragraph (e).
257     13.  For the performance of an HIV-related test medically
258indicated by licensed medical personnel for medical diagnosis of
259a hospitalized infant as necessary to provide appropriate care
260and treatment of the infant when, after a reasonable attempt, a
261parent cannot be contacted to provide consent. The medical
262records of the infant shall reflect the reason consent of the
263parent was not initially obtained. Test results shall be
264provided to the parent when the parent is located.
265     14.  For the performance of HIV testing conducted to
266monitor the clinical progress of a patient previously diagnosed
267to be HIV positive.
268     15.  For the performance of repeated HIV testing conducted
269to monitor possible conversion from a significant exposure.
270     Section 2.  Section 384.25, Florida Statutes, is amended to
271read:
272     384.25  Reporting required.--
273     (1)  Each person who makes a diagnosis of or treats a
274person with a sexually transmissible disease and each laboratory
275that performs a test for a sexually transmissible disease which
276either concludes with a positive result for a sexually
277transmissible disease or a result indicative of human
278immunodeficiency virus (HIV) or acquired immune deficiency
279syndrome (AIDS) shall report such facts as may be required by
280the department by rule, within a time period as specified by
281rule of the department, but in no case to exceed 2 weeks.
282     (2)  The department shall adopt rules specifying the
283information required in and the maximum a minimum time period
284for reporting a sexually transmissible disease. In adopting such
285rules, the department shall consider the need for information,
286protections for the privacy and confidentiality of the patient,
287and the practical ability of persons and laboratories to report
288in a reasonable fashion.
289     (3)  To ensure the confidentiality of persons infected with
290the human immunodeficiency virus (HIV), reporting of HIV
291infection and AIDS acquired immune deficiency syndrome (AIDS)
292must be conducted using a system the HIV/AIDS Reporting System
293(HARS) developed by the Centers for Disease Control and
294Prevention of the United States Public Health Service or an
295equivalent system.
296     (a)  The department shall adopt rules requiring each
297physician and laboratory to report any newborn or infant up to
29818 months of age who has been exposed to HIV. Such rules may
299include the method and time period for reporting which may not
300exceed 2 weeks, information to be included in the report,
301enforcement requirements, and followup activities by the
302department.
303     (3)  The department shall require reporting of physician
304diagnosed cases of AIDS based upon diagnostic criteria from the
305Centers for Disease Control and Prevention.
306     (b)(4)  The department may require physician and laboratory
307reporting of HIV infection. However, only reports of HIV
308infection identified on or after the effective date of the rule
309developed by the department pursuant to this subsection shall be
310accepted. The reporting may not affect or relate to anonymous
311HIV testing programs conducted pursuant to s. 381.004(4) or to
312university-based medical research protocols as determined by the
313department.
314     (c)(5)  After notification of the test subject under
315subsection (4), the department may, with the consent of the test
316subject, notify school superintendents of students and school
317personnel whose HIV tests are positive.
318     (6)  The department shall by February 1 of each year submit
319to the Legislature an annual report relating to all information
320obtained pursuant to this section.
321     (4)(7)  Each person who violates the provisions of this
322section or the rules adopted hereunder may be fined by the
323department up to $500 for each offense. The department shall
324report each violation of this section to the regulatory agency
325responsible for licensing each health care professional and each
326laboratory to which these provisions apply.
327     Section 3.  Section 384.31, Florida Statutes, is amended to
328read:
329     384.31  Serological Testing of pregnant women; duty of the
330attendant.--
331     (1)  Every person, including every physician licensed under
332chapter 458 or chapter 459 or midwife licensed under part I of
333chapter 464 or chapter 467, attending a pregnant woman for
334conditions relating to pregnancy during the period of gestation
335and delivery shall take or cause the woman to be tested for
336sexually transmissible diseases, including HIV, as taken a
337sample of venous blood at a time or times specified by the
338department rule. Testing Each sample of blood shall be conducted
339tested by a laboratory approved for such purposes under part I
340of chapter 483 for sexually transmissible diseases as required
341by rule of the department. The woman shall be informed of the
342tests that will be conducted and of her right to refuse testing.
343If the pregnant woman objects to testing, a written statement of
344objection, signed by the woman, shall be placed in the patient's
345medical record and no testing shall occur.
346     (2)  At the time the venous blood sample is taken, testing
347for human immunodeficiency virus (HIV) infection shall be
348offered to each pregnant woman. The prevailing professional
349standard of care in this state requires each health care
350provider and midwife who attends a pregnant woman to counsel the
351woman to be tested for human immunodeficiency virus (HIV).
352Counseling shall include a discussion of the availability of
353treatment if the pregnant woman tests HIV positive. If a
354pregnant woman objects to HIV testing, reasonable steps shall be
355taken to obtain a written statement of such objection, signed by
356the patient, which shall be placed in the patient's medical
357record. Every person, including every physician licensed under
358chapter 458 or chapter 459 or midwife licensed under part I of
359chapter 464 or chapter 467, who attends a pregnant woman who has
360been offered and objects to HIV testing shall be immune from
361liability arising out of or related to the contracting of HIV
362infection or acquired immune deficiency syndrome (AIDS) by the
363child from the mother.
364     Section 4.  This act shall take effect July 1, 2005.


CODING: Words stricken are deletions; words underlined are additions.
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