Chapter 7
Current Florida Law and Its Impact on Testing, Confidentiality, and Treatment

The 2003 Florida Statutes pertaining to HIV and other communicable diseases can be found in section 381 (www.flsenate.gov/Statutes/index.cfm).  Key aspects pertain to testing, reporting, and confidentiality.

Informed Consent

Section 381.004 of the Florida Law mandates that any test for the detection of HIV cannot be ordered without an informed consent from the individual being tested.  Although pre-test counseling is no longer required, the process of obtaining consent includes an explanation of the individual’s right to confidentiality of test results to the extent provided by law, informing the individual that a positive test result will be reported to the county health department, and informing the individual on the availability of anonymous testing.  Consent may be written or verbal with appropriate documentation in the medical record if verbally obtained.

Consent may be obtained from the individual’s legal guardian or other person authorized by law if the individual is not competent, incapacitated and unable to make informed judgment, or is a minor (unless being examined or treated for sexually transmissible diseases as provided in section 384.40).

Exceptions to the requirement for informed consent are as follows:

1. When testing for sexually transmissible diseases (STDs) is required by state or federal law such as in persons convicted of prostitution, inmates prior to their release pursuant to section 945.355, or testing by a medical examiner.
2. Exceptions provided for blood, plasma, organ, skin, semen or other human tissue donation detailed in section 381.0041 or when human tissue is collected lawfully without consent for corneal removal or enucleation of the eyes.
3. In medical emergencies when the test results are needed to provide emergency care and treatment for the patient who is unable to provide consent with appropriate documentation in the medical record.
4. When testing is needed for diagnosis and treatment of an acute medical illness and the physician feels that obtaining informed consent would be detrimental to the patient.
5. When performed as part of an autopsy for which consent has been obtained.
6. Performing the test on a voluntarily obtained blood sample of the defendant in cases of sexual battery upon the victim’s request with the results released only to the victim and defendant.
7. When testing is court ordered.
8. When used for epidemiological or research purposes with measures in place to mask the identity of the subject including to the researcher.
9. When a medical personnel has a significant exposure during the course of employment or within the scope of practice and a blood sample has been obtained voluntarily for other purposes.  Reasonable attempts should be made to locate and obtain consent from the test subject and these should be documented.  If the subject refuses voluntary testing, a licensed physician has to determine the necessity of testing based on significance of exposure and document in the employee’s medical record only.  Costs for testing in this situation shall not be borne by the test subject but by the exposed medical personnel or the employer.  This provision also requires testing the medical personnel or documentation of a negative HIV test not more than 6 months prior.
10. When necessary for diagnosis and treatment of a hospitalized infant when unable to obtain parental consent after reasonable attempts.
11. When performing a repeat test to monitor seroconversion after a significant exposure.

Release of Test Results and Confidentiality

Post-test counseling is no longer required but the provider or facility that ordered HIV testing is required to make reasonable efforts to notify the individual of the test results.  Notification for positive results should include information on availability of appropriate medical and supportive services, importance of partner notification, and prevention of HIV transmission.  Individuals with negative test results should be given information on prevention of transmission.  If testing was performed in the emergency department or at a detention facility, information can be provided to the county health department.

Positive results by ELISA or Single-Use Diagnostic System (SUDS) shall be revealed positive only after confirmatory testing has been performed.  Exceptions are when testing is performed in the setting of a significant exposure of medical personnel or if medical decisions cannot await confirmatory test results such as in the peripartum care of the woman and neonate.

HIV test results can be disclosed only to the test subject except to the following:

1. The subject’s legally authorized representative.
2. Any person designated in a legally effective release signed by the subject or legal representative but the executed release has to specify inclusion of information pertaining to HIV.
3. Health care providers during the course of consultation, diagnosis or treatment of the individual.
4. The Department of Health for purposes of reporting and control of spread of disease.
5. Health care facilities or providers involved in procurement, processing, distribution or use of human tissue from a deceased or semen.
6. Authorized medical or epidemiological researchers.
7. Health facility staff committees that conduct program monitoring, evaluation, and service reviews.
8. A person granted access by court order.
9. Medical personnel who have been subject to a significant exposure.
10. Health care facility personnel or agents for the health care provider who have a need to know in the course of patient care activities or administrative operations.

Reporting

As of July 1, 1997, reporting to the county health department is required within two weeks not only for diagnosis of AIDS but also for confirmed positive HIV tests.  Persons who are tested through the anonymous testing facilities are not reported. 

Special Provisions for Pregnant Women

Florida law mandates that every physician or midwife attending to female for conditions related to pregnancy during the period of gestation or delivery is required to offer an HIV test with counseling on the availability of treatment if the test is positive (section 384.31).  If the pregnant woman refuses testing, a written documentation of refusal signed by the patient should be included in the medical record. 

Mandatory Testing of Inmates

If an inmate’s HIV status is unknown, an HIV test must be performed not less than 60 days prior to presumptive release date unreleased released due to an emergency.  The results are kept in the inmates medical records.  The facility has to notify the health department of the inmate’s intended residence if they test positive.  Inmates who test positive should be given transitional assistance including:

·         education on prevention of transmission and importance of follow up care and treatment

·         written discharge plans including referral to and contacts to the local health department and HIV primary care services

·         30-day supply of HIV/AIDS related medications

Treatment of Patients

It is unlawful for any facility or licensed person to require any person to submit to HIV testing as a condition for admission or treatment.  It is not precluded for a physician to decline, in good faith, to provide a particular treatment requested by the patient if the appropriateness of that treatment can only be determined through a HIV test.

Section 760.50, F.S., legally classifies persons suffering from HIV or AIDS as handicapped. Discrimination on the basis of gender, race, or handicap is prohibited by various federal and state laws. Because of the classification as handicapped, it conceivable that a physician refusing to treat a patient with HIV or AIDS could be subject to a civil rights type lawsuit.

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