Bill Text: FL S0628 | 2017 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Transmission of Disease Through Bodily Fluids
Spectrum:
Status: (Failed) 2017-05-05 - Died in Health Policy [S0628 Detail]
Download: Florida-2017-S0628-Introduced.html
Bill Title: Transmission of Disease Through Bodily Fluids
Spectrum:
Status: (Failed) 2017-05-05 - Died in Health Policy [S0628 Detail]
Download: Florida-2017-S0628-Introduced.html
Florida Senate - 2017 SB 628
By Senator Garcia
36-00181B-17 2017628__
1 A bill to be entitled
2 An act relating to transmission of disease through
3 bodily fluids; amending s. 381.0041, F.S.;
4 reclassifying a criminal offense relating to the
5 donation of blood, plasma, organs, skin, or other
6 human tissue; providing an exception to allow such
7 donation when deemed medically appropriate by a
8 licensed physician; amending s. 384.23, F.S.; defining
9 the terms “sexual conduct” and “substantial risk of
10 transmission”; amending s. 384.24, F.S.; expanding the
11 scope of unlawful acts by a person infected with a
12 sexually transmissible disease; amending s. 384.34,
13 F.S.; reclassifying specified criminal offenses;
14 eliminating a fine for specified rule violations;
15 amending s. 775.0877, F.S.; requiring that a person
16 who commits, rather than one who attempts to commit,
17 an offense involving the transmission of semen or
18 vaginal secretions must undergo HIV testing;
19 eliminating the application of the section to certain
20 offenses; revising disclosure requirements;
21 reclassifying specified criminal offenses; amending s.
22 796.08, F.S.; authorizing, rather than requiring, an
23 infected arrestee to request, rather than to submit
24 to, appropriate treatment; requiring the Department of
25 Health to pay any costs associated with the screening
26 of such arrestees; eliminating requirements that
27 persons convicted of specified offenses undergo
28 screening for a sexually transmitted disease;
29 eliminating certain crimes related to prostitution;
30 amending s. 960.003, F.S.; substantially revising the
31 focus of the section from the testing of alleged
32 perpetrators and the disclosure of results of that
33 testing to the medical treatment and care of victims
34 of sexual assault involving the exchange of bodily
35 fluids presenting a substantial risk of HIV infection;
36 revising legislative findings; requiring that the
37 department refer such victims to medical services;
38 requiring that the medical services include the offer
39 of postexposure prophylaxis; requiring the department
40 to ensure that certain out-of-pocket expenses to
41 victims not exceed a specified amount; amending ss.
42 381.004, 921.0022, and 951.27, F.S.; conforming
43 provisions to changes made by the act; providing an
44 effective date.
45
46 Be It Enacted by the Legislature of the State of Florida:
47
48 Section 1. Paragraph (b) of subsection (11) of section
49 381.0041, Florida Statutes, is amended to read:
50 381.0041 Donation and transfer of human tissue; testing
51 requirements.—
52 (11)
53 (b) Except when the donation is deemed medically
54 appropriate by a licensed physician, any person who has human
55 immunodeficiency virus infection, who knows he or she is
56 infected with human immunodeficiency virus, and who has been
57 informed that he or she may communicate this disease by donating
58 blood, plasma, organs, skin, or other human tissue who donates
59 blood, plasma, organs, skin, or other human tissue commits is
60 guilty of a misdemeanor felony of the first third degree,
61 punishable as provided in s. 775.082 or, s. 775.083, or s.
62 775.084.
63 Section 2. Section 384.23, Florida Statutes, is amended to
64 read:
65 384.23 Definitions.—As used in this chapter, the term:
66 (1) “Department” means the Department of Health.
67 (2) “County health department” means agencies and entities
68 as designated in chapter 154.
69 (3) “Sexual conduct” means any sexual activity involving
70 the physical contact of the sexual organs of a person with the
71 genitals, mouth, or anus of another person, whether such persons
72 are of the same or the opposite sex.
73 (4)(3) “Sexually transmissible disease” means a bacterial,
74 viral, fungal, or parasitic disease determined by rule of the
75 department to be sexually transmissible, to be a threat to the
76 public health and welfare, and to be a disease for which a
77 legitimate public interest will be served by providing for
78 prevention, elimination, control, and treatment. The department
79 must, by rule, determine which diseases are to be designated as
80 sexually transmissible diseases and shall consider the
81 recommendations and classifications of the Centers for Disease
82 Control and Prevention and other nationally recognized medical
83 authorities in that determination. Not all diseases that are
84 sexually transmissible need be designated for the purposes of
85 this act.
86 (5) “Substantial risk of transmission” means a reasonable
87 probability of disease transmission as proven by competent
88 medical or epidemiological evidence.
89 Section 3. Section 384.24, Florida Statutes, is amended to
90 read:
91 384.24 Unlawful acts.—
92 (1) It is unlawful for any person who has chancroid,
93 gonorrhea, granuloma inguinale, lymphogranuloma venereum,
94 genital herpes simplex, chlamydia, nongonococcal urethritis
95 (NGU), pelvic inflammatory disease (PID)/acute salpingitis, or
96 syphilis, when such person knows he or she is infected with one
97 or more of these diseases and when such person has been informed
98 that he or she may communicate the this disease to another
99 person through sexual conduct intercourse, to engage in have
100 sexual conduct intercourse with any other person, unless such
101 other person has been informed of the presence of the sexually
102 transmissible disease and has consented to the sexual conduct
103 intercourse.
104 (2) It is unlawful for any person who has human
105 immunodeficiency virus infection, when such person knows he or
106 she is infected with this disease and when such person has been
107 informed that he or she may communicate this disease to another
108 person through sexual conduct intercourse, to engage in have
109 sexual conduct intercourse with any other person, unless such
110 other person has been informed of the presence of the sexually
111 transmissible disease and has consented to the sexual conduct
112 intercourse.
113 Section 4. Section 384.34, Florida Statutes, is amended to
114 read:
115 384.34 Penalties.—
116 (1) Any person who violates s. 384.24 the provisions of s.
117 384.24(1) commits a misdemeanor of the first degree, punishable
118 as provided in s. 775.082 or s. 775.083.
119 (2) Any person who violates the provisions of s. 384.26 or
120 s. 384.29 commits a misdemeanor of the first degree, punishable
121 as provided in s. 775.082 or s. 775.083.
122 (3) Any person who maliciously disseminates any false
123 information or report concerning the existence of any sexually
124 transmissible disease commits a misdemeanor of the first degree
125 felony of the third degree, punishable as provided in s. 775.082
126 or s. 775.083 ss. 775.082, 775.083, and 775.084.
127 (4) Any person who violates the provisions of the
128 department’s rules pertaining to sexually transmissible diseases
129 may be punished by a fine not to exceed $500 for each violation.
130 Any penalties enforced under this subsection shall be in
131 addition to other penalties provided by this chapter. The
132 department may enforce this section and adopt rules necessary to
133 administer this section.
134 (5) Any person who violates s. 384.24(2) commits a felony
135 of the third degree, punishable as provided in s. 775.082, s.
136 775.083, or s. 775.084. Any person who commits multiple
137 violations of s. 384.24(2) commits a felony of the first degree,
138 punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
139 (4)(6) Any person who obtains information that identifies
140 an individual who has a sexually transmissible disease, who knew
141 or should have known the nature of the information and
142 maliciously, or for monetary gain, disseminates this information
143 or otherwise makes this information known to any other person,
144 except by providing it either to a physician or nurse employed
145 by the Department of Health or to a law enforcement agency,
146 commits a misdemeanor of the first degree felony of the third
147 degree, punishable as provided in s. 775.082 or, s. 775.083, or
148 s. 775.084.
149 Section 5. Section 775.0877, Florida Statutes, is amended
150 to read:
151 775.0877 Criminal transmission of HIV; procedures;
152 penalties.—
153 (1) In any case in which a person has been convicted of or
154 has pled nolo contendere or guilty to, regardless of whether
155 adjudication is withheld, any of the following offenses, or the
156 attempt thereof, which offense or attempted offense involves the
157 transmission of semen or vaginal secretions body fluids from one
158 person to another:
159 (a) Section 794.011, relating to sexual battery;
160 (b) Section 826.04, relating to incest;
161 (c) Section 800.04, relating to lewd or lascivious offenses
162 committed upon or in the presence of persons less than 16 years
163 of age;
164 (d) Sections 784.011, 784.07(2)(a), and 784.08(2)(d),
165 relating to assault;
166 (e) Sections 784.021, 784.07(2)(c), and 784.08(2)(b),
167 relating to aggravated assault;
168 (f) Sections 784.03, 784.07(2)(b), and 784.08(2)(c),
169 relating to battery;
170 (g) Sections 784.045, 784.07(2)(d), and 784.08(2)(a),
171 relating to aggravated battery;
172 (h) Section 827.03(2)(c), relating to child abuse;
173 (i) Section 827.03(2)(a), relating to aggravated child
174 abuse;
175 (j) Section 825.102(1), relating to abuse of an elderly
176 person or disabled adult;
177 (k) Section 825.102(2), relating to aggravated abuse of an
178 elderly person or disabled adult;
179 (l) Section 827.071, relating to sexual performance by
180 person less than 18 years of age;
181 (m) Sections 796.07 and 796.08, relating to prostitution;
182 (n) Section 381.0041(11)(b), relating to donation of blood,
183 plasma, organs, skin, or other human tissue; or
184 (m)(o) Sections 787.06(3)(b), (d), (f), and (g), relating
185 to human trafficking,
186
187 the court shall order the offender to undergo HIV testing, to be
188 performed under the direction of the Department of Health in
189 accordance with s. 381.004, unless the offender has undergone
190 HIV testing voluntarily or pursuant to procedures established in
191 s. 381.004(2)(h)6. or s. 951.27, or any other applicable law or
192 rule providing for HIV testing of criminal offenders or inmates,
193 subsequent to her or his arrest for an offense enumerated in
194 paragraphs (a)(l) (a)-(n) for which she or he was convicted or
195 to which she or he pled nolo contendere or guilty. The results
196 of an HIV test performed on an offender pursuant to this
197 subsection are not admissible in any criminal proceeding arising
198 out of the alleged offense.
199 (2) The results of the HIV test must be disclosed under the
200 direction of the Department of Health, to the offender who has
201 been convicted of or pled nolo contendere or guilty to an
202 offense specified in subsection (1) and to, the public health
203 agency of the county in which the conviction occurred and, if
204 different, the county of residence of the offender, and, upon
205 request pursuant to s. 960.003, to the victim or the victim’s
206 legal guardian, or the parent or legal guardian of the victim if
207 the victim is a minor.
208 (3) An offender who has undergone HIV testing pursuant to
209 subsection (1), and to whom positive test results have been
210 disclosed pursuant to subsection (2), who commits a second or
211 subsequent offense enumerated in paragraphs (1)(a)(l) which
212 results in transmission of HIV to the victim (1)(a)-(n), commits
213 criminal transmission of HIV, a misdemeanor of the first degree
214 felony of the third degree, punishable as provided in s. 775.082
215 or, s. 775.083, or s. 775.084. A person may be convicted and
216 sentenced separately for a violation of this subsection and for
217 the underlying crime enumerated in paragraphs (1)(a)(l) (1)(a)
218 (n).
219 (4) An offender may challenge the positive results of an
220 HIV test performed pursuant to this section and may introduce
221 results of a backup test performed at her or his own expense.
222 (5) Nothing in this section requires that an HIV infection
223 have occurred in order for an offender to have committed
224 criminal transmission of HIV.
225 (5)(6) For an alleged violation of any offense enumerated
226 in paragraphs (1)(a)(l) (1)(a)-(n) for which the consent of the
227 victim may be raised as a defense in a criminal prosecution, it
228 is an affirmative defense to a charge of violating this section
229 that the person exposed knew that the offender was infected with
230 HIV, knew that the action being taken could result in
231 transmission of the HIV infection, and consented to the action
232 voluntarily with that knowledge.
233 Section 6. Section 796.08, Florida Statutes, is amended to
234 read:
235 796.08 Screening for HIV and sexually transmissible
236 diseases; providing penalties.—
237 (1)(a) For the purposes of this section, the term “sexually
238 transmissible disease” means a bacterial, viral, fungal, or
239 parasitic disease, determined by rule of the Department of
240 Health to be sexually transmissible, a threat to the public
241 health and welfare, and a disease for which a legitimate public
242 interest is served by providing for regulation and treatment.
243 (b) In considering which diseases are designated as
244 sexually transmissible diseases, the Department of Health shall
245 consider such diseases as chancroid, gonorrhea, granuloma
246 inguinale, lymphogranuloma venereum, genital herpes simplex,
247 chlamydia, nongonococcal urethritis (NGU), pelvic inflammatory
248 disease (PID)/acute salpingitis, syphilis, and human
249 immunodeficiency virus infection for designation and shall
250 consider the recommendations and classifications of the Centers
251 for Disease Control and Prevention and other nationally
252 recognized authorities. Not all diseases that are sexually
253 transmissible need be designated for purposes of this section.
254 (2) A person arrested under s. 796.07 may request screening
255 for a sexually transmissible disease under direction of the
256 Department of Health and, if infected, may request shall submit
257 to appropriate treatment and counseling. The Department of
258 Health shall A person who requests screening for a sexually
259 transmissible disease under this subsection must pay any costs
260 associated with such screening.
261 (3) A person convicted under s. 796.07 of prostitution or
262 procuring another to commit prostitution must undergo screening
263 for a sexually transmissible disease, including, but not limited
264 to, screening to detect exposure to the human immunodeficiency
265 virus, under direction of the Department of Health. If the
266 person is infected, he or she must submit to treatment and
267 counseling prior to release from probation, community control,
268 or incarceration. Notwithstanding the provisions of s. 384.29,
269 the results of tests conducted pursuant to this subsection shall
270 be made available by the Department of Health to the offender,
271 medical personnel, appropriate state agencies, state attorneys,
272 and courts of appropriate jurisdiction in need of such
273 information in order to enforce the provisions of this chapter.
274 (4) A person who commits prostitution or procures another
275 for prostitution and who, prior to the commission of such crime,
276 had tested positive for a sexually transmissible disease other
277 than human immunodeficiency virus infection and knew or had been
278 informed that he or she had tested positive for such sexually
279 transmissible disease and could possibly communicate such
280 disease to another person through sexual activity commits a
281 misdemeanor of the first degree, punishable as provided in s.
282 775.082 or s. 775.083. A person may be convicted and sentenced
283 separately for a violation of this subsection and for the
284 underlying crime of prostitution or procurement of prostitution.
285 (5) A person who:
286 (a) Commits or offers to commit prostitution; or
287 (b) Procures another for prostitution by engaging in sexual
288 activity in a manner likely to transmit the human
289 immunodeficiency virus,
290
291 and who, prior to the commission of such crime, had tested
292 positive for human immunodeficiency virus and knew or had been
293 informed that he or she had tested positive for human
294 immunodeficiency virus and could possibly communicate such
295 disease to another person through sexual activity commits
296 criminal transmission of HIV, a felony of the third degree,
297 punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
298 A person may be convicted and sentenced separately for a
299 violation of this subsection and for the underlying crime of
300 prostitution or procurement of prostitution.
301 Section 7. Section 960.003, Florida Statutes, is amended to
302 read:
303 960.003 Preventive medical treatment and care for victims
304 of sexual assault involving the exchange of bodily fluids
305 presenting a substantial risk of transmission of HIV Hepatitis
306 and HIV testing for persons charged with or alleged by petition
307 for delinquency to have committed certain offenses; disclosure
308 of results to victims.—
309 (1) LEGISLATIVE FINDINGS INTENT.—The Legislature finds that
310 victims of sexual assault involving the exchange of bodily
311 fluids that present a substantial risk of transmission of the
312 human immunodeficiency virus (HIV) should have access to
313 appropriate medical care and affordable postexposure prophylaxis
314 to prevent the acquisition of HIV a victim of a criminal offense
315 which involves the transmission of body fluids, or which
316 involves certain sexual offenses in which the victim is a minor,
317 disabled adult, or elderly person, is entitled to know at the
318 earliest possible opportunity whether the person charged with or
319 alleged by petition for delinquency to have committed the
320 offense has tested positive for hepatitis or human
321 immunodeficiency virus (HIV) infection. The Legislature finds
322 that to deny victims access to hepatitis and HIV test results
323 causes unnecessary mental anguish in persons who have already
324 suffered trauma. The Legislature further finds that since
325 medical science now recognizes that early diagnosis is a
326 critical factor in the treatment of hepatitis and HIV infection,
327 both the victim and the person charged with or alleged by
328 petition for delinquency to have committed the offense benefit
329 from prompt disclosure of hepatitis and HIV test results.
330 (2) REFERRAL TO MEDICAL SERVICES REQUIRED TESTING OF PERSON
331 CHARGED WITH OR ALLEGED BY PETITION FOR DELINQUENCY TO HAVE
332 COMMITTED CERTAIN OFFENSES.—
333 (a) In The Department of Health shall refer for medical
334 services any case in which a person who alleges that he or she
335 has been the victim of a sexual assault involving an exchange of
336 bodily fluids which presents a substantial risk of transmission
337 of the human immunodeficiency virus (HIV). Such services must
338 include the offer of postexposure prophylaxis (PEP) to prevent
339 the acquisition of HIV. The Department of Health shall ensure
340 that any person electing to take PEP under this subsection does
341 not incur out-of-pocket expenses of more than $30 in obtaining
342 this medication has been charged by information or indictment
343 with or alleged by petition for delinquency to have committed
344 any offense enumerated in s. 775.0877(1)(a)-(n), which involves
345 the transmission of body fluids from one person to another, upon
346 request of the victim or the victim’s legal guardian, or of the
347 parent or legal guardian of the victim if the victim is a minor,
348 the court shall order such person to undergo hepatitis and HIV
349 testing within 48 hours after the information, indictment, or
350 petition for delinquency is filed. In the event the victim or,
351 if the victim is a minor, the victim’s parent or legal guardian
352 requests hepatitis and HIV testing after 48 hours have elapsed
353 from the filing of the indictment, information, or petition for
354 delinquency, the testing shall be done within 48 hours after the
355 request.
356 (b) However, when a victim of any sexual offense enumerated
357 in s. 775.0877(1)(a)-(n) is under the age of 18 at the time the
358 offense was committed or when a victim of any sexual offense
359 enumerated in s. 775.0877(1)(a)-(n) or s. 825.1025 is a disabled
360 adult or elderly person as defined in s. 825.1025 regardless of
361 whether the offense involves the transmission of bodily fluids
362 from one person to another, then upon the request of the victim
363 or the victim’s legal guardian, or of the parent or legal
364 guardian, the court shall order such person to undergo hepatitis
365 and HIV testing within 48 hours after the information,
366 indictment, or petition for delinquency is filed. In the event
367 the victim or, if the victim is a minor, the victim’s parent or
368 legal guardian requests hepatitis and HIV testing after 48 hours
369 have elapsed from the filing of the indictment, information, or
370 petition for delinquency, the testing shall be done within 48
371 hours after the request. The testing shall be performed under
372 the direction of the Department of Health in accordance with s.
373 381.004. The results of a hepatitis and HIV test performed on a
374 defendant or juvenile offender pursuant to this subsection shall
375 not be admissible in any criminal or juvenile proceeding arising
376 out of the alleged offense.
377 (c) If medically appropriate, followup HIV testing shall be
378 provided when testing has been ordered under paragraph (a) or
379 paragraph (b). The medical propriety of followup HIV testing
380 shall be based upon a determination by a physician and does not
381 require an additional court order. Notification to the victim,
382 or to the victim’s parent or legal guardian, and to the
383 defendant of the results of each followup test shall be made as
384 soon as practicable in accordance with this section.
385 (3) DISCLOSURE OF RESULTS.—
386 (a) The results of the test shall be disclosed no later
387 than 2 weeks after the court receives such results, under the
388 direction of the Department of Health, to the person charged
389 with or alleged by petition for delinquency to have committed or
390 to the person convicted of or adjudicated delinquent for any
391 offense enumerated in s. 775.0877(1)(a)-(n), which involves the
392 transmission of body fluids from one person to another, and,
393 upon request, to the victim or the victim’s legal guardian, or
394 the parent or legal guardian of the victim if the victim is a
395 minor, and to public health agencies pursuant to s. 775.0877. If
396 the alleged offender is a juvenile, the test results shall also
397 be disclosed to the parent or guardian. When the victim is a
398 victim as described in paragraph (2)(b), the test results must
399 also be disclosed no later than 2 weeks after the court receives
400 such results, to the person charged with or alleged by petition
401 for delinquency to have committed or to the person convicted of
402 or adjudicated delinquent for any offense enumerated in s.
403 775.0877(1)(a)-(n), or s. 825.1025 regardless of whether the
404 offense involves the transmission of bodily fluids from one
405 person to another, and, upon request, to the victim or the
406 victim’s legal guardian, or the parent or legal guardian of the
407 victim, and to public health agencies pursuant to s. 775.0877.
408 Otherwise, hepatitis and HIV test results obtained pursuant to
409 this section are confidential and exempt from the provisions of
410 s. 119.07(1) and s. 24(a), Art. I of the State Constitution and
411 shall not be disclosed to any other person except as expressly
412 authorized by law or court order.
413 (b) At the time that the results are disclosed to the
414 victim or the victim’s legal guardian, or to the parent or legal
415 guardian of a victim if the victim is a minor, the same
416 immediate opportunity for face-to-face counseling which must be
417 made available under s. 381.004 to those who undergo hepatitis
418 and HIV testing shall also be afforded to the victim or the
419 victim’s legal guardian, or to the parent or legal guardian of
420 the victim if the victim is a minor.
421 (4) POSTCONVICTION TESTING.—If, for any reason, the testing
422 requested under subsection (2) has not been undertaken, then
423 upon request of the victim or the victim’s legal guardian, or
424 the parent or legal guardian of the victim if the victim is a
425 minor, the court shall order the offender to undergo hepatitis
426 and HIV testing following conviction or delinquency
427 adjudication. The testing shall be performed under the direction
428 of the Department of Health, and the results shall be disclosed
429 in accordance with the provisions of subsection (3).
430 (5) EXCEPTIONS.—Subsections (2) and (4) do not apply if:
431 (a) The person charged with or convicted of or alleged by
432 petition for delinquency to have committed or been adjudicated
433 delinquent for an offense described in subsection (2) has
434 undergone hepatitis and HIV testing voluntarily or pursuant to
435 procedures established in s. 381.004(2)(h)6. or s. 951.27, or
436 any other applicable law or rule providing for hepatitis and HIV
437 testing of criminal defendants, inmates, or juvenile offenders,
438 subsequent to his or her arrest, conviction, or delinquency
439 adjudication for the offense for which he or she was charged or
440 alleged by petition for delinquency to have committed; and
441 (b) The results of such hepatitis and HIV testing have been
442 furnished to the victim or the victim’s legal guardian, or the
443 parent or legal guardian of the victim if the victim is a minor.
444 (6) TESTING DURING INCARCERATION, DETENTION, OR PLACEMENT;
445 DISCLOSURE.—In any case in which a person convicted of or
446 adjudicated delinquent for an offense described in subsection
447 (2) has not been tested under subsection (2), but undergoes
448 hepatitis and HIV testing during his or her incarceration,
449 detention, or placement, the results of the initial hepatitis
450 and HIV testing shall be disclosed in accordance with subsection
451 (3). Except as otherwise requested by the victim or the victim’s
452 legal guardian, or the parent or guardian of the victim if the
453 victim is a minor, if the initial test is conducted within the
454 first year of the imprisonment, detention, or placement, the
455 request for disclosure shall be considered a standing request
456 for any subsequent hepatitis and HIV test results obtained
457 within 1 year after the initial hepatitis and HIV tests are
458 performed, and need not be repeated for each test
459 administration. Where the inmate or juvenile offender has
460 previously been tested pursuant to subsection (2) the request
461 for disclosure under this subsection shall be considered a
462 standing request for subsequent hepatitis and HIV results
463 conducted within 1 year of the test performed pursuant to
464 subsection (2). If the hepatitis and HIV testing is performed by
465 an agency other than the Department of Health, that agency shall
466 be responsible for forwarding the test results to the Department
467 of Health for disclosure in accordance with the provisions of
468 subsection (3). This subsection shall not be limited to results
469 of hepatitis and HIV tests administered subsequent to June 27,
470 1990, but shall also apply to the results of all hepatitis and
471 HIV tests performed on inmates convicted of or juvenile
472 offenders adjudicated delinquent for sex offenses as described
473 in subsection (2) during their incarceration, detention, or
474 placement prior to June 27, 1990.
475 Section 8. Paragraphs (f) and (h) of subsection (2) of
476 section 381.004, Florida Statutes, are amended to read:
477 381.004 HIV testing.—
478 (2) HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED CONSENT;
479 RESULTS; COUNSELING; CONFIDENTIALITY.—
480 (f) Except as provided in this section, the identity of a
481 person upon whom a test has been performed is confidential and
482 exempt from the provisions of s. 119.07(1). No person to whom
483 the results of a test have been disclosed may disclose the test
484 results to another person except as authorized by this
485 subsection and by s. 951.27 ss. 951.27 and 960.003. Whenever
486 disclosure is made pursuant to this subsection, it shall be
487 accompanied by a statement in writing which includes the
488 following or substantially similar language: “This information
489 has been disclosed to you from records whose confidentiality is
490 protected by state law. State law prohibits you from making any
491 further disclosure of such information without the specific
492 written consent of the person to whom such information pertains,
493 or as otherwise permitted by state law. A general authorization
494 for the release of medical or other information is NOT
495 sufficient for this purpose.” An oral disclosure shall be
496 accompanied by oral notice and followed by a written notice
497 within 10 days, except that this notice shall not be required
498 for disclosures made pursuant to subparagraphs (e)3. and 4.
499 (h) Paragraph (a) does not apply:
500 1. When testing for sexually transmissible diseases is
501 required by state or federal law, or by rule, including the
502 following situations:
503 a. HIV testing pursuant to s. 796.08 of persons convicted
504 of prostitution or of procuring another to commit prostitution.
505 b. HIV testing of inmates pursuant to s. 945.355 before
506 their release from prison by reason of parole, accumulation of
507 gain-time credits, or expiration of sentence.
508 b.c. Testing for HIV by a medical examiner in accordance
509 with s. 406.11.
510 c.d. HIV testing of pregnant women pursuant to s. 384.31.
511 2. To those exceptions provided for blood, plasma, organs,
512 skin, semen, or other human tissue pursuant to s. 381.0041.
513 3. For the performance of an HIV-related test by licensed
514 medical personnel in bona fide medical emergencies if the test
515 results are necessary for medical diagnostic purposes to provide
516 appropriate emergency care or treatment to the person being
517 tested and the patient is unable to consent, as supported by
518 documentation in the medical record. Notification of test
519 results in accordance with paragraph (c) is required.
520 4. For the performance of an HIV-related test by licensed
521 medical personnel for medical diagnosis of acute illness where,
522 in the opinion of the attending physician, providing
523 notification would be detrimental to the patient, as supported
524 by documentation in the medical record, and the test results are
525 necessary for medical diagnostic purposes to provide appropriate
526 care or treatment to the person being tested. Notification of
527 test results in accordance with paragraph (c) is required if it
528 would not be detrimental to the patient. This subparagraph does
529 not authorize the routine testing of patients for HIV infection
530 without notification.
531 5. If HIV testing is performed as part of an autopsy for
532 which consent was obtained pursuant to s. 872.04.
533 6. For the performance of an HIV test upon a defendant
534 pursuant to the victim’s request in a prosecution for any type
535 of sexual battery where a blood sample is taken from the
536 defendant voluntarily, pursuant to court order for any purpose,
537 or pursuant to s. 775.0877 or, s. 951.27, or s. 960.003;
538 however, the results of an HIV test performed shall be disclosed
539 solely to the victim and the defendant, except as provided in
540 ss. 775.0877 and, 951.27, and 960.003.
541 7. If an HIV test is mandated by court order.
542 8. For epidemiological research pursuant to s. 381.0031,
543 for research consistent with institutional review boards created
544 by 45 C.F.R. part 46, or for the performance of an HIV-related
545 test for the purpose of research, if the testing is performed in
546 a manner by which the identity of the test subject is not known
547 and may not be retrieved by the researcher.
548 9. If human tissue is collected lawfully without the
549 consent of the donor for corneal removal as authorized by s.
550 765.5185 or enucleation of the eyes as authorized by s. 765.519.
551 10. For the performance of an HIV test upon an individual
552 who comes into contact with medical personnel in such a way that
553 a significant exposure has occurred during the course of
554 employment, within the scope of practice, or during the course
555 of providing emergency medical assistance to the individual. The
556 term “medical personnel” includes a licensed or certified health
557 care professional; an employee of a health care professional or
558 health care facility; employees of a laboratory licensed under
559 chapter 483; personnel of a blood bank or plasma center; a
560 medical student or other student who is receiving training as a
561 health care professional at a health care facility; and a
562 paramedic or emergency medical technician certified by the
563 department to perform life-support procedures under s. 401.23.
564 a. The occurrence of a significant exposure shall be
565 documented by medical personnel under the supervision of a
566 licensed physician and recorded only in the personnel record of
567 the medical personnel.
568 b. Costs of an HIV test shall be borne by the medical
569 personnel or the employer of the medical personnel. However,
570 costs of testing or treatment not directly related to the
571 initial HIV tests or costs of subsequent testing or treatment
572 may not be borne by the medical personnel or the employer of the
573 medical personnel.
574 c. In order to use the provisions of this subparagraph, the
575 medical personnel must be tested for HIV pursuant to this
576 section or provide the results of an HIV test taken within 6
577 months before the significant exposure if such test results are
578 negative.
579 d. A person who receives the results of an HIV test
580 pursuant to this subparagraph shall maintain the confidentiality
581 of the information received and of the persons tested. Such
582 confidential information is exempt from s. 119.07(1).
583 e. If the source of the exposure is not available and will
584 not voluntarily present himself or herself to a health facility
585 to be tested for HIV, the medical personnel or the employer of
586 such person acting on behalf of the employee may seek a court
587 order directing the source of the exposure to submit to HIV
588 testing. A sworn statement by a physician licensed under chapter
589 458 or chapter 459 that a significant exposure has occurred and
590 that, in the physician’s medical judgment, testing is medically
591 necessary to determine the course of treatment constitutes
592 probable cause for the issuance of an order by the court. The
593 results of the test shall be released to the source of the
594 exposure and to the person who experienced the exposure.
595 11. For the performance of an HIV test upon an individual
596 who comes into contact with nonmedical personnel in such a way
597 that a significant exposure has occurred while the nonmedical
598 personnel provides emergency medical assistance during a medical
599 emergency. For the purposes of this subparagraph, a medical
600 emergency means an emergency medical condition outside of a
601 hospital or health care facility that provides physician care.
602 The test may be performed only during the course of treatment
603 for the medical emergency.
604 a. The occurrence of a significant exposure shall be
605 documented by medical personnel under the supervision of a
606 licensed physician and recorded in the medical record of the
607 nonmedical personnel.
608 b. Costs of any HIV test shall be borne by the nonmedical
609 personnel or the employer of the nonmedical personnel. However,
610 costs of testing or treatment not directly related to the
611 initial HIV tests or costs of subsequent testing or treatment
612 may not be borne by the nonmedical personnel or the employer of
613 the nonmedical personnel.
614 c. In order to use the provisions of this subparagraph, the
615 nonmedical personnel shall be tested for HIV pursuant to this
616 section or shall provide the results of an HIV test taken within
617 6 months before the significant exposure if such test results
618 are negative.
619 d. A person who receives the results of an HIV test
620 pursuant to this subparagraph shall maintain the confidentiality
621 of the information received and of the persons tested. Such
622 confidential information is exempt from s. 119.07(1).
623 e. If the source of the exposure is not available and will
624 not voluntarily present himself or herself to a health facility
625 to be tested for HIV, the nonmedical personnel or the employer
626 of the nonmedical personnel acting on behalf of the employee may
627 seek a court order directing the source of the exposure to
628 submit to HIV testing. A sworn statement by a physician licensed
629 under chapter 458 or chapter 459 that a significant exposure has
630 occurred and that, in the physician’s medical judgment, testing
631 is medically necessary to determine the course of treatment
632 constitutes probable cause for the issuance of an order by the
633 court. The results of the test shall be released to the source
634 of the exposure and to the person who experienced the exposure.
635 12. For the performance of an HIV test by the medical
636 examiner or attending physician upon an individual who expired
637 or could not be resuscitated while receiving emergency medical
638 assistance or care and who was the source of a significant
639 exposure to medical or nonmedical personnel providing such
640 assistance or care.
641 a. HIV testing may be conducted only after appropriate
642 medical personnel under the supervision of a licensed physician
643 documents in the medical record of the medical personnel or
644 nonmedical personnel that there has been a significant exposure
645 and that, in accordance with the written protocols based on the
646 National Centers for Disease Control and Prevention guidelines
647 on HIV postexposure prophylaxis and in the physician’s medical
648 judgment, the information is medically necessary to determine
649 the course of treatment for the medical personnel or nonmedical
650 personnel.
651 b. Costs of an HIV test performed under this subparagraph
652 may not be charged to the deceased or to the family of the
653 deceased person.
654 c. For this subparagraph to be applicable, the medical
655 personnel or nonmedical personnel must be tested for HIV under
656 this section or must provide the results of an HIV test taken
657 within 6 months before the significant exposure if such test
658 results are negative.
659 d. A person who receives the results of an HIV test
660 pursuant to this subparagraph shall comply with paragraph (e).
661 13. For the performance of an HIV-related test medically
662 indicated by licensed medical personnel for medical diagnosis of
663 a hospitalized infant as necessary to provide appropriate care
664 and treatment of the infant if, after a reasonable attempt, a
665 parent cannot be contacted to provide consent. The medical
666 records of the infant must reflect the reason consent of the
667 parent was not initially obtained. Test results shall be
668 provided to the parent when the parent is located.
669 14. For the performance of HIV testing conducted to monitor
670 the clinical progress of a patient previously diagnosed to be
671 HIV positive.
672 15. For the performance of repeated HIV testing conducted
673 to monitor possible conversion from a significant exposure.
674 Section 9. Paragraph (e) of subsection (3) of section
675 921.0022, Florida Statutes, is amended to read:
676 921.0022 Criminal Punishment Code; offense severity ranking
677 chart.—
678 (3) OFFENSE SEVERITY RANKING CHART
679 (e) LEVEL 5
680
681 FloridaStatute FelonyDegree Description
682 316.027(2)(a) 3rd Accidents involving personal injuries other than serious bodily injury, failure to stop; leaving scene.
683 316.1935(4)(a) 2nd Aggravated fleeing or eluding.
684 316.80(2) 2nd Unlawful conveyance of fuel; obtaining fuel fraudulently.
685 322.34(6) 3rd Careless operation of motor vehicle with suspended license, resulting in death or serious bodily injury.
686 327.30(5) 3rd Vessel accidents involving personal injury; leaving scene.
687 379.365(2)(c)1. 3rd Violation of rules relating to: willful molestation of stone crab traps, lines, or buoys; illegal bartering, trading, or sale, conspiring or aiding in such barter, trade, or sale, or supplying, agreeing to supply, aiding in supplying, or giving away stone crab trap tags or certificates; making, altering, forging, counterfeiting, or reproducing stone crab trap tags; possession of forged, counterfeit, or imitation stone crab trap tags; and engaging in the commercial harvest of stone crabs while license is suspended or revoked.
688 379.367(4) 3rd Willful molestation of a commercial harvester’s spiny lobster trap, line, or buoy.
689 379.407(5)(b)3. 3rd Possession of 100 or more undersized spiny lobsters.
690 381.0041(11)(b) 3rd Donate blood, plasma, or organs knowing HIV positive.
691 440.10(1)(g) 2nd Failure to obtain workers’ compensation coverage.
692 440.105(5) 2nd Unlawful solicitation for the purpose of making workers’ compensation claims.
693 440.381(2) 2nd Submission of false, misleading, or incomplete information with the purpose of avoiding or reducing workers’ compensation premiums.
694 624.401(4)(b)2. 2nd Transacting insurance without a certificate or authority; premium collected $20,000 or more but less than $100,000.
695 626.902(1)(c) 2nd Representing an unauthorized insurer; repeat offender.
696 790.01(2) 3rd Carrying a concealed firearm.
697 790.162 2nd Threat to throw or discharge destructive device.
698 790.163(1) 2nd False report of bomb, explosive, weapon of mass destruction, or use of firearms in violent manner.
699 790.221(1) 2nd Possession of short-barreled shotgun or machine gun.
700 790.23 2nd Felons in possession of firearms, ammunition, or electronic weapons or devices.
701 796.05(1) 2nd Live on earnings of a prostitute; 1st offense.
702 800.04(6)(c) 3rd Lewd or lascivious conduct; offender less than 18 years of age.
703 800.04(7)(b) 2nd Lewd or lascivious exhibition; offender 18 years of age or older.
704 806.111(1) 3rd Possess, manufacture, or dispense fire bomb with intent to damage any structure or property.
705 812.0145(2)(b) 2nd Theft from person 65 years of age or older; $10,000 or more but less than $50,000.
706 812.015(8) 3rd Retail theft; property stolen is valued at $300 or more and one or more specified acts.
707 812.019(1) 2nd Stolen property; dealing in or trafficking in.
708 812.131(2)(b) 3rd Robbery by sudden snatching.
709 812.16(2) 3rd Owning, operating, or conducting a chop shop.
710 817.034(4)(a)2. 2nd Communications fraud, value $20,000 to $50,000.
711 817.234(11)(b) 2nd Insurance fraud; property value $20,000 or more but less than $100,000.
712 817.2341(1), (2)(a) & (3)(a) 3rd Filing false financial statements, making false entries of material fact or false statements regarding property values relating to the solvency of an insuring entity.
713 817.568(2)(b) 2nd Fraudulent use of personal identification information; value of benefit, services received, payment avoided, or amount of injury or fraud, $5,000 or more or use of personal identification information of 10 or more persons.
714 817.611(2)(a) 2nd Traffic in or possess 5 to 14 counterfeit credit cards or related documents.
715 817.625(2)(b) 2nd Second or subsequent fraudulent use of scanning device or reencoder.
716 825.1025(4) 3rd Lewd or lascivious exhibition in the presence of an elderly person or disabled adult.
717 827.071(4) 2nd Possess with intent to promote any photographic material, motion picture, etc., which includes sexual conduct by a child.
718 827.071(5) 3rd Possess, control, or intentionally view any photographic material, motion picture, etc., which includes sexual conduct by a child.
719 839.13(2)(b) 2nd Falsifying records of an individual in the care and custody of a state agency involving great bodily harm or death.
720 843.01 3rd Resist officer with violence to person; resist arrest with violence.
721 847.0135(5)(b) 2nd Lewd or lascivious exhibition using computer; offender 18 years or older.
722 847.0137 (2) & (3) 3rd Transmission of pornography by electronic device or equipment.
723 847.0138 (2) & (3) 3rd Transmission of material harmful to minors to a minor by electronic device or equipment.
724 874.05(1)(b) 2nd Encouraging or recruiting another to join a criminal gang; second or subsequent offense.
725 874.05(2)(a) 2nd Encouraging or recruiting person under 13 years of age to join a criminal gang.
726 893.13(1)(a)1. 2nd Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4. drugs).
727 893.13(1)(c)2. 2nd Sell, manufacture, or deliver cannabis (or other s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) drugs) within 1,000 feet of a child care facility, school, or state, county, or municipal park or publicly owned recreational facility or community center.
728 893.13(1)(d)1. 1st Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4. drugs) within 1,000 feet of university.
729 893.13(1)(e)2. 2nd Sell, manufacture, or deliver cannabis or other drug prohibited under s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) within 1,000 feet of property used for religious services or a specified business site.
730 893.13(1)(f)1. 1st Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), or (2)(a), (2)(b), or (2)(c)4. drugs) within 1,000 feet of public housing facility.
731 893.13(4)(b) 2nd Use or hire of minor; deliver to minor other controlled substance.
732 893.1351(1) 3rd Ownership, lease, or rental for trafficking in or manufacturing of controlled substance.
733
734 Section 10. Subsection (2) of section 951.27, Florida
735 Statutes, is amended to read:
736 951.27 Blood tests of inmates.—
737 (2) Except as otherwise provided in this subsection,
738 serologic blood test results obtained pursuant to subsection (1)
739 are confidential and exempt from the provisions of s. 119.07(1)
740 and s. 24(a), Art. I of the State Constitution. However, such
741 results may be provided to employees or officers of the sheriff
742 or chief correctional officer who are responsible for the
743 custody and care of the affected inmate and have a need to know
744 such information, and as provided in s. 775.0877 ss. 775.0877
745 and 960.003. In addition, upon request of the victim or the
746 victim’s legal guardian, or the parent or legal guardian of the
747 victim if the victim is a minor, the results of any HIV test
748 performed on an inmate who has been arrested for any sexual
749 offense involving oral, anal, or vaginal penetration by, or
750 union with, the sexual organ of another, shall be disclosed to
751 the victim or the victim’s legal guardian, or to the parent or
752 legal guardian of the victim if the victim is a minor. In such
753 cases, the county or municipal detention facility shall furnish
754 the test results to the Department of Health, which is
755 responsible for disclosing the results to public health agencies
756 as provided in s. 775.0877 and to the victim or the victim’s
757 legal guardian, or the parent or legal guardian of the victim if
758 the victim is a minor, as provided in s. 960.003(3).
759 Section 11. This act shall take effect July 1, 2017.
