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House Bill 1289

House Bill hb1289

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    Florida House of Representatives - 2002                HB 1289

        By Representative Wilson






  1                      A bill to be entitled

  2         An act relating to the testing of inmates for

  3         HIV; creating s. 945.355, F.S.; defining "HIV

  4         test"; requiring the Department of Corrections

  5         to perform an HIV test before an inmate is

  6         released if the inmate's HIV status is unknown;

  7         providing certain exceptions; requiring that

  8         the Department of Corrections notify the county

  9         health department where the inmate plans to

10         reside following release if the inmate is HIV

11         positive; requiring the department to provide

12         special transitional assistance to an inmate

13         who is HIV positive; requiring the department

14         to report to the Legislature; amending s.

15         945.10, F.S.; requiring that certain medical

16         records be released to the Department of Health

17         and the county health department where an

18         inmate who is HIV positive plans to reside;

19         reenacting s. 945.10(1)(a), F.S., relating to

20         mental health, medical, or substance abuse

21         records of an inmate; amending s. 381.004,

22         F.S.; providing that informed consent is not

23         required for an HIV test of an inmate prior to

24         the inmate's release; amending s. 944.704,

25         F.S.; providing additional duties for the

26         department with respect to transition

27         assistance for inmates who are HIV positive;

28         providing an effective date.

29

30         WHEREAS, HIV and AIDS infections are one of the state's

31  most critical challenges, with Florida having the third

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  1  highest number of AIDS cases in the nation and the second

  2  highest number of pediatric AIDS cases, and

  3         WHEREAS, the incidence of HIV and AIDS cases in the

  4  state's prisons exceeds the incidence of HIV and AIDS in the

  5  general population, and

  6         WHEREAS, between 1989 and 1997, death due to AIDS

  7  accounted for over half of inmate deaths in the state's

  8  prisons, and

  9         WHEREAS, recent advances in treatment for HIV and AIDS

10  can potentially reduce the number of opportunistic infections

11  and associated medical costs and delay the onset of death due

12  to the disease, and

13         WHEREAS, referral to appropriate medical and social

14  services upon the release of an inmate can play a crucial role

15  in treatment, care, and secondary prevention efforts, NOW,

16  THEREFORE,

17

18  Be It Enacted by the Legislature of the State of Florida:

19

20         Section 1.  Section 945.355, Florida Statutes, is

21  created to read:

22         945.355  HIV testing of inmates prior to release.--

23         (1)  As used in this section, the term "HIV test" means

24  a test ordered to determine the presence of the antibody or

25  antigen to human immunodeficiency virus or the presence of

26  human immunodeficiency virus infection.

27         (2)  Pursuant to s. 381.004(3), the department shall

28  perform an HIV test on an inmate whose HIV status is unknown

29  to the department not less than 60 days prior to the inmate's

30  presumptive release date from prison by reason of parole,

31  accumulation of gain-time credits, or expiration of sentence.

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  1  An inmate who is known to the department to be HIV positive or

  2  who has been tested within the previous year and does not

  3  request retesting need not be tested under this section, but

  4  is subject to subsections (4) and (5). However, an inmate who

  5  is released due to an emergency is exempt from the provisions

  6  of this section.

  7         (3)  The department shall record the results of the HIV

  8  test in the inmate's medical record.

  9         (4)  Pursuant to ss. 381.004(3) and 945.10, the

10  department shall notify the Department of Health and the

11  county health department where the inmate plans to reside

12  regarding an inmate who is known to be HIV positive or has

13  received a positive HIV test result under this section prior

14  to the release of that inmate.

15         (5)  Prior to the release of an inmate who is known to

16  be HIV positive or who has received a positive HIV test result

17  under this section, the department shall provide special

18  transitional assistance to the inmate, which must include:

19         (a)  Education on preventing the transmission of HIV to

20  others and on the importance of receiving followup care and

21  treatment.

22         (b)  A written, individualized discharge plan that

23  includes referral to and contacts within the county health

24  department and local HIV primary care services in the area

25  where the inmate plans to reside.

26         (c)  If appropriate, a 30-day supply of all medicines

27  the inmate is taking at the time of release.

28         (6)  The department shall report to the Legislature by

29  March 1, 2003, regarding the implementation of this program

30  and participation therein by inmates and staff.

31

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  1         Section 2.  Paragraph (a) of subsection (1) of section

  2  945.10, Florida Statutes, is reenacted, and subsection (2) of

  3  said section is amended, to read:

  4         945.10  Confidential information.--

  5         (1)  Except as otherwise provided by law or in this

  6  section, the following records and information of the

  7  Department of Corrections are confidential and exempt from the

  8  provisions of s. 119.07(1) and s. 24(a), Art. I of the State

  9  Constitution:

10         (a)  Mental health, medical, or substance abuse records

11  of an inmate or an offender.

12         (2)  The records and information specified in

13  paragraphs (1)(a)-(h) (1)(b)-(h) may be released as follows

14  unless expressly prohibited by federal law:

15         (a)  Information specified in paragraphs (1)(b), (d),

16  and (f) to the Office of the Governor, the Legislature, the

17  Parole Commission, the Department of Children and Family

18  Services, a private correctional facility or program that

19  operates under a contract, the Department of Legal Affairs, a

20  state attorney, the court, or a law enforcement agency. A

21  request for records or information pursuant to this paragraph

22  need not be in writing.

23         (b)  Information specified in paragraphs (1)(c), (e),

24  and (h) to the Office of the Governor, the Legislature, the

25  Parole Commission, the Department of Children and Family

26  Services, a private correctional facility or program that

27  operates under contract, the Department of Legal Affairs, a

28  state attorney, the court, or a law enforcement agency. A

29  request for records or information pursuant to this paragraph

30  must be in writing and a statement provided demonstrating a

31  need for the records or information.

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  1         (c)  Information specified in paragraph (1)(b) to an

  2  attorney representing an inmate under sentence of death,

  3  except those portions of the records containing a victim's

  4  statement or address, or the statement or address of a

  5  relative of the victim. A request for records of information

  6  pursuant to this paragraph must be in writing and a statement

  7  provided demonstrating a need for the records or information.

  8         (d)  Information specified in paragraph (1)(b) to a

  9  public defender representing a defendant, except those

10  portions of the records containing a victim's statement or

11  address, or the statement or address of a relative of the

12  victim. A request for records or information pursuant to this

13  paragraph need not be in writing.

14         (e)  Information specified in paragraph (1)(b) to state

15  or local governmental agencies. A request for records or

16  information pursuant to this paragraph must be in writing and

17  a statement provided demonstrating a need for the records or

18  information.

19         (f)  Information specified in paragraph (1)(b) to a

20  person conducting legitimate research. A request for records

21  and information pursuant to this paragraph must be in writing,

22  the person requesting the records or information must sign a

23  confidentiality agreement, and the department must approve the

24  request in writing.

25         (g)  Information specified in paragraph (1)(a) to the

26  Department of Health and the county health department where an

27  inmate plans to reside if he or she has tested positive for

28  the presence of the antibody or antigen to human

29  immunodeficiency virus or the presence of human

30  immunodeficiency virus infection pursuant to s. 945.355.

31

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  1  Records and information released under this subsection remain

  2  confidential and exempt from the provisions of s. 119.07(1)

  3  and s. 24(a), Art. I of the State Constitution when held by

  4  the receiving person or entity.

  5         Section 3.  Paragraph (h) of subsection (3) of section

  6  381.004, Florida Statutes, is amended to read:

  7         381.004  HIV testing.--

  8         (3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED

  9  CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--

10         (h)  Notwithstanding the provisions of paragraph (a),

11  informed consent is not required:

12         1.  When testing for sexually transmissible diseases is

13  required by state or federal law, or by rule including the

14  following situations:

15         a.  HIV testing pursuant to s. 796.08 of persons

16  convicted of prostitution or of procuring another to commit

17  prostitution.

18         b.  HIV testing of inmates pursuant to s. 945.355 prior

19  to their release from prison by reason of parole, expiration

20  of sentence, or expiration of sentence as reduced by

21  accumulated meritorious or incentive gain-time.

22         c.b.  Testing for HIV by a medical examiner in

23  accordance with s. 406.11.

24         2.  Those exceptions provided for blood, plasma,

25  organs, skin, semen, or other human tissue pursuant to s.

26  381.0041.

27         3.  For the performance of an HIV-related test by

28  licensed medical personnel in bona fide medical emergencies

29  when the test results are necessary for medical diagnostic

30  purposes to provide appropriate emergency care or treatment to

31  the person being tested and the patient is unable to consent,

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  1  as supported by documentation in the medical record.

  2  Notification of test results in accordance with paragraph (c)

  3  is required.

  4         4.  For the performance of an HIV-related test by

  5  licensed medical personnel for medical diagnosis of acute

  6  illness where, in the opinion of the attending physician,

  7  obtaining informed consent would be detrimental to the

  8  patient, as supported by documentation in the medical record,

  9  and the test results are necessary for medical diagnostic

10  purposes to provide appropriate care or treatment to the

11  person being tested. Notification of test results in

12  accordance with paragraph (c) is required if it would not be

13  detrimental to the patient.  This subparagraph does not

14  authorize the routine testing of patients for HIV infection

15  without informed consent.

16         5.  When HIV testing is performed as part of an autopsy

17  for which consent was obtained pursuant to s. 872.04.

18         6.  For the performance of an HIV test upon a defendant

19  pursuant to the victim's request in a prosecution for any type

20  of sexual battery where a blood sample is taken from the

21  defendant voluntarily, pursuant to court order for any

22  purpose, or pursuant to the provisions of s. 775.0877, s.

23  951.27, or s. 960.003; however, the results of any HIV test

24  performed shall be disclosed solely to the victim and the

25  defendant, except as provided in ss. 775.0877, 951.27, and

26  960.003.

27         7.  When an HIV test is mandated by court order.

28         8.  For epidemiological research pursuant to s.

29  381.0032, for research consistent with institutional review

30  boards created by 45 C.F.R. part 46, or for the performance of

31  an HIV-related test for the purpose of research, if the

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  1  testing is performed in a manner by which the identity of the

  2  test subject is not known and may not be retrieved by the

  3  researcher.

  4         9.  When human tissue is collected lawfully without the

  5  consent of the donor for corneal removal as authorized by s.

  6  765.5185 or enucleation of the eyes as authorized by s.

  7  765.519.

  8         10.  For the performance of an HIV test upon an

  9  individual who comes into contact with medical personnel in

10  such a way that a significant exposure has occurred during the

11  course of employment or within the scope of practice and where

12  a blood sample is available that was taken from that

13  individual voluntarily by medical personnel for other

14  purposes.  The term "medical personnel" includes a licensed or

15  certified health care professional; an employee of a health

16  care professional or health care facility; employees of a

17  laboratory licensed under chapter 483; personnel of a blood

18  bank or plasma center; a medical student or other student who

19  is receiving training as a health care professional at a

20  health care facility; and a paramedic or emergency medical

21  technician certified by the department to perform life-support

22  procedures under s. 401.23.

23         a.  Prior to performance of an HIV test on a

24  voluntarily obtained blood sample, the individual from whom

25  the blood was obtained shall be requested to consent to the

26  performance of the test and to the release of the results.

27  The individual's refusal to consent and all information

28  concerning the performance of an HIV test and any HIV test

29  result shall be documented only in the medical personnel's

30  record unless the individual gives written consent to entering

31  this information on the individual's medical record.

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  1         b.  Reasonable attempts to locate the individual and to

  2  obtain consent shall be made, and all attempts must be

  3  documented. If the individual cannot be found, an HIV test may

  4  be conducted on the available blood sample. If the individual

  5  does not voluntarily consent to the performance of an HIV

  6  test, the individual shall be informed that an HIV test will

  7  be performed, and counseling shall be furnished as provided in

  8  this section.  However, HIV testing shall be conducted only

  9  after a licensed physician documents, in the medical record of

10  the medical personnel, that there has been a significant

11  exposure and that, in the physician's medical judgment, the

12  information is medically necessary to determine the course of

13  treatment for the medical personnel.

14         c.  Costs of any HIV test of a blood sample performed

15  with or without the consent of the individual, as provided in

16  this subparagraph, shall be borne by the medical personnel or

17  the employer of the medical personnel. However, costs of

18  testing or treatment not directly related to the initial HIV

19  tests or costs of subsequent testing or treatment shall not be

20  borne by the medical personnel or the employer of the medical

21  personnel.

22         d.  In order to utilize the provisions of this

23  subparagraph, the medical personnel must either be tested for

24  HIV pursuant to this section or provide the results of an HIV

25  test taken within 6 months prior to the significant exposure

26  if such test results are negative.

27         e.  A person who receives the results of an HIV test

28  pursuant to this subparagraph shall maintain the

29  confidentiality of the information received and of the persons

30  tested.  Such confidential information is exempt from s.

31  119.07(1).

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  1         f.  If the source of the exposure will not voluntarily

  2  submit to HIV testing and a blood sample is not available, the

  3  medical personnel or the employer of such person acting on

  4  behalf of the employee may seek a court order directing the

  5  source of the exposure to submit to HIV testing.  A sworn

  6  statement by a physician licensed under chapter 458 or chapter

  7  459 that a significant exposure has occurred and that, in the

  8  physician's medical judgment, testing is medically necessary

  9  to determine the course of treatment constitutes probable

10  cause for the issuance of an order by the court.  The results

11  of the test shall be released to the source of the exposure

12  and to the person who experienced the exposure.

13         11.  For the performance of an HIV test upon an

14  individual who comes into contact with medical personnel in

15  such a way that a significant exposure has occurred during the

16  course of employment or within the scope of practice of the

17  medical personnel while the medical personnel provides

18  emergency medical treatment to the individual; or who comes

19  into contact with nonmedical personnel in such a way that a

20  significant exposure has occurred while the nonmedical

21  personnel provides emergency medical assistance during a

22  medical emergency.  For the purposes of this subparagraph, a

23  medical emergency means an emergency medical condition outside

24  of a hospital or health care facility that provides physician

25  care. The test may be performed only during the course of

26  treatment for the medical emergency.

27         a.  An individual who is capable of providing consent

28  shall be requested to consent to an HIV test prior to the

29  testing. The individual's refusal to consent, and all

30  information concerning the performance of an HIV test and its

31  result, shall be documented only in the medical personnel's

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  1  record unless the individual gives written consent to entering

  2  this information on the individual's medical record.

  3         b.  HIV testing shall be conducted only after a

  4  licensed physician documents, in the medical record of the

  5  medical personnel or nonmedical personnel, that there has been

  6  a significant exposure and that, in the physician's medical

  7  judgment, the information is medically necessary to determine

  8  the course of treatment for the medical personnel or

  9  nonmedical personnel.

10         c.  Costs of any HIV test performed with or without the

11  consent of the individual, as provided in this subparagraph,

12  shall be borne by the medical personnel or the employer of the

13  medical personnel or nonmedical personnel. However, costs of

14  testing or treatment not directly related to the initial HIV

15  tests or costs of subsequent testing or treatment shall not be

16  borne by the medical personnel or the employer of the medical

17  personnel or nonmedical personnel.

18         d.  In order to utilize the provisions of this

19  subparagraph, the medical personnel or nonmedical personnel

20  shall be tested for HIV pursuant to this section or shall

21  provide the results of an HIV test taken within 6 months prior

22  to the significant exposure if such test results are negative.

23         e.  A person who receives the results of an HIV test

24  pursuant to this subparagraph shall maintain the

25  confidentiality of the information received and of the persons

26  tested.  Such confidential information is exempt from s.

27  119.07(1).

28         f.  If the source of the exposure will not voluntarily

29  submit to HIV testing and a blood sample was not obtained

30  during treatment for the medical emergency, the medical

31  personnel, the employer of the medical personnel acting on

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  1  behalf of the employee, or the nonmedical personnel may seek a

  2  court order directing the source of the exposure to submit to

  3  HIV testing.  A sworn statement by a physician licensed under

  4  chapter 458 or chapter 459 that a significant exposure has

  5  occurred and that, in the physician's medical judgment,

  6  testing is medically necessary to determine the course of

  7  treatment constitutes probable cause for the issuance of an

  8  order by the court.  The results of the test shall be released

  9  to the source of the exposure and to the person who

10  experienced the exposure.

11         12.  For the performance of an HIV test by the medical

12  examiner or attending physician upon an individual who expired

13  or could not be resuscitated while receiving emergency medical

14  assistance or care and who was the source of a significant

15  exposure to medical or nonmedical personnel providing such

16  assistance or care.

17         a.  HIV testing may be conducted only after a licensed

18  physician documents in the medical record of the medical

19  personnel or nonmedical personnel that there has been a

20  significant exposure and that, in the physician's medical

21  judgment, the information is medically necessary to determine

22  the course of treatment for the medical personnel or

23  nonmedical personnel.

24         b.  Costs of any HIV test performed under this

25  subparagraph may not be charged to the deceased or to the

26  family of the deceased person.

27         c.  For the provisions of this subparagraph to be

28  applicable, the medical personnel or nonmedical personnel must

29  be tested for HIV under this section or must provide the

30  results of an HIV test taken within 6 months before the

31  significant exposure if such test results are negative.

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  1         d.  A person who receives the results of an HIV test

  2  pursuant to this subparagraph shall comply with paragraph (e).

  3         13.  For the performance of an HIV-related test

  4  medically indicated by licensed medical personnel for medical

  5  diagnosis of a hospitalized infant as necessary to provide

  6  appropriate care and treatment of the infant when, after a

  7  reasonable attempt, a parent cannot be contacted to provide

  8  consent. The medical records of the infant shall reflect the

  9  reason consent of the parent was not initially obtained.  Test

10  results shall be provided to the parent when the parent is

11  located.

12         14.  For the performance of HIV testing conducted to

13  monitor the clinical progress of a patient previously

14  diagnosed to be HIV positive.

15         15.  For the performance of repeated HIV testing

16  conducted to monitor possible conversion from a significant

17  exposure.

18         Section 4.  Section 944.704, Florida Statutes, is

19  amended to read:

20         944.704  Staff who provide transition assistance;

21  duties.--The department shall provide a transition assistance

22  specialist at each of the major institutions whose duties

23  include, but are not limited to:

24         (1)  Coordinating delivery of transition assistance

25  program services at the institution and at the community

26  correctional centers authorized pursuant to s. 945.091(1)(b).

27         (2)  Assisting in the development of each inmate's

28  postrelease plan.

29         (3)  Obtaining job placement information.

30         (4)  Facilitating placement in a private transition

31  housing program, if requested by any eligible inmate. If an

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  1  inmate who is nearing his or her date of release requests

  2  placement in a contracted substance abuse transition housing

  3  program, the transition assistance specialist shall inform the

  4  inmate of program availability and assess the inmate's need

  5  and suitability for transition housing assistance. If an

  6  inmate is approved for placement, the specialist shall assist

  7  the inmate and coordinate the release of the inmate with the

  8  selected program. If an inmate requests and is approved for

  9  placement in a contracted faith-based substance abuse

10  transition housing program, the specialist must consult with

11  the chaplain prior to such placement. In selecting inmates who

12  are nearing their date of release for placement in a

13  faith-based program, the department shall ensure that an

14  inmate's faith orientation, or lack thereof, will not be

15  considered in determining admission to the program and that

16  the program does not attempt to convert an inmate toward a

17  particular faith or religious preference.

18         (5)  Providing a photo identification card to all

19  inmates prior to their release.

20         (6)  Providing a written medical discharge plan,

21  referral to a county health department, and, if appropriate, a

22  supply of prescribed medication for an inmate known to be HIV

23  positive or who has received a positive HIV test result under

24  s. 945.355.

25

26  The transition assistance specialist may not be a correctional

27  officer or correctional probation officer as defined in s.

28  943.10.

29         Section 5.  This act shall take effect July 1, 2002.

30

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  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Revises provisions relating to the testing of inmates for
  4    HIV. Defines "HIV test." Requires the Department of
      Corrections to perform an HIV test before an inmate is
  5    released if the inmate's HIV status is unknown. Provides
      certain exceptions. Requires that the Department of
  6    Corrections notify the county health department where the
      inmate plans to reside following release if the inmate is
  7    HIV positive. Requires the department to provide special
      transitional assistance to an inmate who is HIV positive.
  8    Requires a report to the Legislature. Requires that
      certain medical records be released to the Department of
  9    Health and the county health department where an inmate
      who is HIV positive plans to reside. Provides that
10    informed consent is not required for an HIV test of an
      inmate prior to the inmate's release. Provides additional
11    duties for the department with respect to transition
      assistance for inmates who are HIV positive.
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