In general, HIV/AIDS
testing requires the prior informed consent of the person
to be tested or his/her legal representative (in the case
of a minor child or an incompetent person). And, in general,
a positive result for such a test cannot be disclosed without
informed consent. (FL Stat 381.004)
Specifically, disclosures
in any manner which allows identification of the test subject
are permitted only to:
the subject
of the test or the subject's legally authorized representative;
persons, including
third-party payors, designated in a legally effective specific
release of the test results, executed prior to or after
the test by the test subject or the legally authorized representative;
an authorized
agent or employee of a health facility or health care provider
if the organization is authorized to obtain the test results,
the agent or employee participates in the administration
or provision of patient care or handles or processes specimens
of body fluids or tissues, and thus has a need to know such
information;
health care
providers consulting between themselves or with health care
facilities to determine diagnosis and treatment;
the Department
of Health, in accordance with rules for reporting
disease (this includes medical examiners reporting on
deceased persons);
a health facility
or health care provider which procures, processes, distributes,
or uses cadaveric organs and tissues;
health facility
staff committees, engaged in program monitoring, program
evaluation, or service reviews pursuant to statutory authority;
authorized medical
or epidemiological researchers who may not further disclose
any identifying characteristics or information;
persons allowed
access by a court order which, among other things, demonstrate
a compelling need for the test results which could not be
accomodated by other means, and are accompanied by appropriate
safeguards against unauthorized disclosure;
employees of
the Department of Health, or of child-placing or child-caring
agencies or of family foster homes, who are directly involved
in the placement, care, control, or custody of such test
subject and who have a need to know such information; adoptive
parents of such test subject; or any adult custodian, adult
relative, or any person responsible for the child's welfare;
employees of
residential facilities or of community-based care programs
that care for developmentally disabled persons, who are
directly involved in the care, control, or custody of the
test subject and who have a need to know such information;
a health care
provider involved in the delivery of a child, who can note
the mother's HIV test results in the child's medical record;
or
medical personnel
or nonmedical personnel who have been subject to a significant
exposure during the course of medical practice, or individuals
who are the subject of the significant exposure. (381.004)
Such disclosures
are exempt from the state's public records access provisions
(such as 119.07).
No person to whom
the results of a test have been disclosed may disclose the
test results to another person except as authorized by statute.
Whenever disclosure is made, it must be accompanied by a statement
in writing which includes the following or substantially similar
language:
"This information
has been disclosed to you from records whose confidentiality
is protected by state law. State law prohibits you from
making any further disclosure of such information without
the specific written consent of the person to whom such
information pertains, or as otherwise permitted by state
law. A general authorization for the release of medical
or other information is NOT sufficient for this purpose."
(381.004)
Note that the requirement
for informed consent to testing is also subject to many exceptions,
among them:
when testing
for sexually transmissible diseases is required by state
or federal law (e.g., for persons convicted of certain offences,
for inmates prior to release);
testing of donated
blood, plasma, organs, skin, semen, cornea or other human
tissue;
for medical
diagnostic purposes necessary to provide emergency care,
where the patient is unable to consent, or for other acute
illness where an attending physician determines that obtaining
consent would be "detrimental to the patient";
as part of an
autopsy;
upon a defendant
pursuant to the victim's request in a prosecution for any
type of sexual battery;
when otherwise
mandated by a court order;
for epidemiological
research (see 381.0032), or for research approved by an
IRB, if the testing is "performed in a manner by which
the identity of the test subject is not known and may not
be retrieved by the researcher";
upon an individual
who comes into contact with medical personnel in such a
way that a significant exposure has occurred (after reasonable
attempts to obtain consent have been made); or
to monitor
the clinical progress of a patient previously diagnosed
to be HIV positive, or to monitor possible conversion from
a significant exposure. (381.004)
These provisions
are stricter than those of HIPAA (which gives no specific
attention to HIV/AIDS information) and so are not preempted.
