September 30, 2020
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222839
 (LATE FILED)Amendment
Bill No. 1399
Amendment No. 222839
CHAMBER ACTION
Senate House
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1Representative(s) Richardson offered the following:
2
3     Amendment (with title amendment)
4     Between line(s) 363 and 364, insert:
5     Section 4.  Section 951.27, Florida Statutes, is amended to
6read:
7     951.27  Blood tests of inmates.--
8     (1)  Each county and each municipal detention facility
9shall have a written procedure developed, in consultation with
10the facility medical provider, establishing conditions under
11which an inmate will be tested for infectious disease, including
12human immunodeficiency virus pursuant to s. 775.0877, which
13procedure is consistent with guidelines of the Centers for
14Disease Control and Prevention and recommendations of the
15Correctional Medical Authority. It is not unlawful for the
16person receiving the test results to divulge the test results to
17the sheriff or chief correctional officer.
18     (2)(a)  Each county or municipality has the local option,
19if authorized by a majority of the county's or municipality's
20governing body, to participate in the testing program provided
21in this subsection. The county or municipal detention facility
22that lies within the authority of any participating county or
23municipality shall, consistent with s. 381.004(3), perform an
24HIV test as defined in s. 381.004(2) on each inmate who is to be
25released from the facility unless the facility knows that the
26inmate is HIV positive or unless, within 120 days before the
27release date, the inmate has been tested for HIV and does not
28request retesting. The required test must be performed not less
29than 30 days before the release date of the inmate. A test is
30not required under this paragraph if an inmate is released due
31to an emergency or a court order and the detention facility
32receives less than 30 days' notice of the release date or if the
33inmate is transferred to the custody of the Department of
34Corrections for incarceration in the state correctional system.
35     (b)  If the county or municipal detention facility knows
36that an inmate who is to be released from the facility is HIV
37positive or has received a positive HIV test result, that
38facility shall, before the inmate is released:
39     1.  Notify, consistent with s. 381.004(3), the Department
40of Health and the county health department where the inmate
41being released plans to reside of the release date and HIV
42status of the inmate.
43     2.  Provide special transitional assistance to the inmate,
44which must include:
45     a.  Education on preventing the transmission of HIV to
46others and on the importance of receiving followup medical care
47and treatment.
48     b.  A written, individualized discharge plan that includes
49records of all laboratory and diagnostic test results,
50medication and treatment information, and referrals to and
51contacts with the county health department and local primary
52medical care services for the treatment of HIV infection that
53are available where the inmate plans to reside.
54     (3)(2)  Except as otherwise provided in this subsection,
55serologic blood test results obtained pursuant to subsection (1)
56or subsection (2) are confidential and exempt from the
57provisions of s. 119.07(1) and s. 24(a), Art. I of the State
58Constitution. However, such results may be provided to employees
59or officers of the sheriff or chief correctional officer who are
60responsible for the custody and care of the affected inmate and
61have a need to know such information, and as provided in ss.
62381.004(3), 775.0877, and 960.003. In addition, upon request of
63the victim or the victim's legal guardian, or the parent or
64legal guardian of the victim if the victim is a minor, the
65results of any HIV test performed on an inmate who has been
66arrested for any sexual offense involving oral, anal, or vaginal
67penetration by, or union with, the sexual organ of another,
68shall be disclosed to the victim or the victim's legal guardian,
69or to the parent or legal guardian of the victim if the victim
70is a minor. In such cases, the county or municipal detention
71facility shall furnish the test results to the Department of
72Health, which is responsible for disclosing the results to
73public health agencies as provided in s. 775.0877 and to the
74victim or the victim's legal guardian, or the parent or legal
75guardian of the victim if the victim is a minor, as provided in
76s. 960.003(3).
77     (4)(3)  The results of any serologic blood test on an
78inmate are a part of that inmate's permanent medical file. Upon
79transfer of the inmate to any other correctional facility, such
80file is also transferred, and all relevant authorized persons
81must be notified of positive HIV test results, as required in s.
82775.0877.
83     (5)  Notwithstanding any statute providing for a waiver of
84sovereign immunity, the state, its agencies, or subdivisions,
85and employees of the state, its agencies, or subdivisions are
86not liable to any person for negligently causing death or
87personal injury arising out of complying with this section.
88     Section 5.  Paragraph (h) of subsection (3) of section
89381.004, Florida Statutes, is amended to read:
90     381.004  HIV testing.--
91     (3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED
92CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--
93     (h)  Notwithstanding the provisions of paragraph (a),
94informed consent is not required:
95     1.  When testing for sexually transmissible diseases is
96required by state or federal law, or by rule including the
97following situations:
98     a.  HIV testing pursuant to s. 796.08 of persons convicted
99of prostitution or of procuring another to commit prostitution.
100     b.  HIV testing of inmates pursuant to s. 945.355 prior to
101their release from prison by reason of parole, accumulation of
102gain-time credits, or expiration of sentence.
103     c.  Testing for HIV by a medical examiner in accordance
104with s. 406.11.
105     d.  HIV testing of inmates pursuant to s. 951.27 prior to
106their release from a county or municipal detention facility.
107     2.  Those exceptions provided for blood, plasma, organs,
108skin, semen, or other human tissue pursuant to s. 381.0041.
109     3.  For the performance of an HIV-related test by licensed
110medical personnel in bona fide medical emergencies when the test
111results are necessary for medical diagnostic purposes to provide
112appropriate emergency care or treatment to the person being
113tested and the patient is unable to consent, as supported by
114documentation in the medical record. Notification of test
115results in accordance with paragraph (c) is required.
116     4.  For the performance of an HIV-related test by licensed
117medical personnel for medical diagnosis of acute illness where,
118in the opinion of the attending physician, obtaining informed
119consent would be detrimental to the patient, as supported by
120documentation in the medical record, and the test results are
121necessary for medical diagnostic purposes to provide appropriate
122care or treatment to the person being tested. Notification of
123test results in accordance with paragraph (c) is required if it
124would not be detrimental to the patient.  This subparagraph does
125not authorize the routine testing of patients for HIV infection
126without informed consent.
127     5.  When HIV testing is performed as part of an autopsy for
128which consent was obtained pursuant to s. 872.04.
129     6.  For the performance of an HIV test upon a defendant
130pursuant to the victim's request in a prosecution for any type
131of sexual battery where a blood sample is taken from the
132defendant voluntarily, pursuant to court order for any purpose,
133or pursuant to the provisions of s. 775.0877, s. 951.27, or s.
134960.003; however, the results of any HIV test performed shall be
135disclosed solely to the victim and the defendant, except as
136provided in ss. 775.0877, 951.27, and 960.003.
137     7.  When an HIV test is mandated by court order.
138     8.  For epidemiological research pursuant to s. 381.0032,
139for research consistent with institutional review boards created
140by 45 C.F.R. part 46, or for the performance of an HIV-related
141test for the purpose of research, if the testing is performed in
142a manner by which the identity of the test subject is not known
143and may not be retrieved by the researcher.
144     9.  When human tissue is collected lawfully without the
145consent of the donor for corneal removal as authorized by s.
146765.5185 or enucleation of the eyes as authorized by s. 765.519.
147     10.  For the performance of an HIV test upon an individual
148who comes into contact with medical personnel in such a way that
149a significant exposure has occurred during the course of
150employment or within the scope of practice and where a blood
151sample is available that was taken from that individual
152voluntarily by medical personnel for other purposes.  The term
153"medical personnel" includes a licensed or certified health care
154professional; an employee of a health care professional or
155health care facility; employees of a laboratory licensed under
156chapter 483; personnel of a blood bank or plasma center; a
157medical student or other student who is receiving training as a
158health care professional at a health care facility; and a
159paramedic or emergency medical technician certified by the
160department to perform life-support procedures under s. 401.23.
161     a.  Prior to performance of an HIV test on a voluntarily
162obtained blood sample, the individual from whom the blood was
163obtained shall be requested to consent to the performance of the
164test and to the release of the results.  The individual's
165refusal to consent and all information concerning the
166performance of an HIV test and any HIV test result shall be
167documented only in the medical personnel's record unless the
168individual gives written consent to entering this information on
169the individual's medical record.
170     b.  Reasonable attempts to locate the individual and to
171obtain consent shall be made, and all attempts must be
172documented. If the individual cannot be found, an HIV test may
173be conducted on the available blood sample. If the individual
174does not voluntarily consent to the performance of an HIV test,
175the individual shall be informed that an HIV test will be
176performed, and counseling shall be furnished as provided in this
177section.  However, HIV testing shall be conducted only after a
178licensed physician documents, in the medical record of the
179medical personnel, that there has been a significant exposure
180and that, in the physician's medical judgment, the information
181is medically necessary to determine the course of treatment for
182the medical personnel.
183     c.  Costs of any HIV test of a blood sample performed with
184or without the consent of the individual, as provided in this
185subparagraph, shall be borne by the medical personnel or the
186employer of the medical personnel. However, costs of testing or
187treatment not directly related to the initial HIV tests or costs
188of subsequent testing or treatment shall not be borne by the
189medical personnel or the employer of the medical personnel.
190     d.  In order to utilize the provisions of this
191subparagraph, the medical personnel must either be tested for
192HIV pursuant to this section or provide the results of an HIV
193test taken within 6 months prior to the significant exposure if
194such test results are negative.
195     e.  A person who receives the results of an HIV test
196pursuant to this subparagraph shall maintain the confidentiality
197of the information received and of the persons tested.  Such
198confidential information is exempt from s. 119.07(1).
199     f.  If the source of the exposure will not voluntarily
200submit to HIV testing and a blood sample is not available, the
201medical personnel or the employer of such person acting on
202behalf of the employee may seek a court order directing the
203source of the exposure to submit to HIV testing.  A sworn
204statement by a physician licensed under chapter 458 or chapter
205459 that a significant exposure has occurred and that, in the
206physician's medical judgment, testing is medically necessary to
207determine the course of treatment constitutes probable cause for
208the issuance of an order by the court.  The results of the test
209shall be released to the source of the exposure and to the
210person who experienced the exposure.
211     11.  For the performance of an HIV test upon an individual
212who comes into contact with medical personnel in such a way that
213a significant exposure has occurred during the course of
214employment or within the scope of practice of the medical
215personnel while the medical personnel provides emergency medical
216treatment to the individual; or who comes into contact with
217nonmedical personnel in such a way that a significant exposure
218has occurred while the nonmedical personnel provides emergency
219medical assistance during a medical emergency.  For the purposes
220of this subparagraph, a medical emergency means an emergency
221medical condition outside of a hospital or health care facility
222that provides physician care. The test may be performed only
223during the course of treatment for the medical emergency.
224     a.  An individual who is capable of providing consent shall
225be requested to consent to an HIV test prior to the testing. The
226individual's refusal to consent, and all information concerning
227the performance of an HIV test and its result, shall be
228documented only in the medical personnel's record unless the
229individual gives written consent to entering this information on
230the individual's medical record.
231     b.  HIV testing shall be conducted only after a licensed
232physician documents, in the medical record of the medical
233personnel or nonmedical personnel, that there has been a
234significant exposure and that, in the physician's medical
235judgment, the information is medically necessary to determine
236the course of treatment for the medical personnel or nonmedical
237personnel.
238     c.  Costs of any HIV test performed with or without the
239consent of the individual, as provided in this subparagraph,
240shall be borne by the medical personnel or the employer of the
241medical personnel or nonmedical personnel. However, costs of
242testing or treatment not directly related to the initial HIV
243tests or costs of subsequent testing or treatment shall not be
244borne by the medical personnel or the employer of the medical
245personnel or nonmedical personnel.
246     d.  In order to utilize the provisions of this
247subparagraph, the medical personnel or nonmedical personnel
248shall be tested for HIV pursuant to this section or shall
249provide the results of an HIV test taken within 6 months prior
250to the significant exposure if such test results are negative.
251     e.  A person who receives the results of an HIV test
252pursuant to this subparagraph shall maintain the confidentiality
253of the information received and of the persons tested.  Such
254confidential information is exempt from s. 119.07(1).
255     f.  If the source of the exposure will not voluntarily
256submit to HIV testing and a blood sample was not obtained during
257treatment for the medical emergency, the medical personnel, the
258employer of the medical personnel acting on behalf of the
259employee, or the nonmedical personnel may seek a court order
260directing the source of the exposure to submit to HIV testing.  
261A sworn statement by a physician licensed under chapter 458 or
262chapter 459 that a significant exposure has occurred and that,
263in the physician's medical judgment, testing is medically
264necessary to determine the course of treatment constitutes
265probable cause for the issuance of an order by the court.  The
266results of the test shall be released to the source of the
267exposure and to the person who experienced the exposure.
268     12.  For the performance of an HIV test by the medical
269examiner or attending physician upon an individual who expired
270or could not be resuscitated while receiving emergency medical
271assistance or care and who was the source of a significant
272exposure to medical or nonmedical personnel providing such
273assistance or care.
274     a.  HIV testing may be conducted only after a licensed
275physician documents in the medical record of the medical
276personnel or nonmedical personnel that there has been a
277significant exposure and that, in the physician's medical
278judgment, the information is medically necessary to determine
279the course of treatment for the medical personnel or nonmedical
280personnel.
281     b.  Costs of any HIV test performed under this subparagraph
282may not be charged to the deceased or to the family of the
283deceased person.
284     c.  For the provisions of this subparagraph to be
285applicable, the medical personnel or nonmedical personnel must
286be tested for HIV under this section or must provide the results
287of an HIV test taken within 6 months before the significant
288exposure if such test results are negative.
289     d.  A person who receives the results of an HIV test
290pursuant to this subparagraph shall comply with paragraph (e).
291     13.  For the performance of an HIV-related test medically
292indicated by licensed medical personnel for medical diagnosis of
293a hospitalized infant as necessary to provide appropriate care
294and treatment of the infant when, after a reasonable attempt, a
295parent cannot be contacted to provide consent. The medical
296records of the infant shall reflect the reason consent of the
297parent was not initially obtained.  Test results shall be
298provided to the parent when the parent is located.
299     14.  For the performance of HIV testing conducted to
300monitor the clinical progress of a patient previously diagnosed
301to be HIV positive.
302     15.  For the performance of repeated HIV testing conducted
303to monitor possible conversion from a significant exposure.
304
305================ T I T L E  A M E N D M E N T =============
306     Remove line(s) 20 and insert:
307tested; amending s. 951.27, F.S.; allowing counties and
308municipalities the option to participate in a program to
309test each inmate for HIV prior to the inmate's release if
310the inmate's HIV status is unknown; providing certain
311exceptions; requiring county and municipal detention
312facilities to notify the Department of Health and the
313county health department where the inmate plans to reside
314following release if the inmate is HIV positive; requiring
315the detention facilities to provide special transitional
316assistance to an inmate who is HIV positive; providing for
317immunity for complying entities; amending s. 381.004,
318F.S.; providing that informed consent is not required for
319an HIV test of an inmate prior to the inmate's release
320from a municipal or county detention facility; providing
321an effective date.


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