Florida Senate - 2022 SB 1468 By Senator Stewart 13-00402A-22 20221468__ 1 A bill to be entitled 2 An act relating to the human immunodeficiency virus; 3 amending s. 775.0877, F.S.; excluding saliva from the 4 offenses involving the transmission of body fluids for 5 which certain offenders must undergo HIV testing; 6 deleting offenses relating to prostitution from the 7 offenses under which certain offenders must undergo 8 HIV testing; reducing criminal penalties for the 9 commission of criminal transmission of HIV; amending 10 s. 796.08, F.S.; deleting requirements relating to the 11 screening, treatment, and counseling for sexually 12 transmissible diseases of certain offenders; deleting 13 criminal penalties for related violations; making 14 technical changes; amending s. 960.003, F.S.; 15 conforming cross-references; amending ss. 98.0751 and 16 381.004, F.S.; conforming provisions to changes made 17 by the act; providing an effective date. 18 19 Be It Enacted by the Legislature of the State of Florida: 20 21 Section 1.Subsections (1), (3), and (6) of section 22 775.0877, Florida Statutes, are amended to read: 23 775.0877Criminal transmission of HIV; procedures; 24 penalties. 25 (1)In any case in which a person has been convicted of or 26 has pled nolo contendere or guilty to, regardless of whether 27 adjudication is withheld, any of the following offenses, or the 28 attempt thereof, which offense or attempted offense involves the 29 transmission of body fluids, excluding saliva, from one person 30 to another: 31 (a)Section 794.011, relating to sexual battery; 32 (b)Section 826.04, relating to incest; 33 (c)Section 800.04, relating to lewd or lascivious offenses 34 committed upon or in the presence of persons less than 16 years 35 of age; 36 (d)Sections 784.011, 784.07(2)(a), and 784.08(2)(d), 37 relating to assault; 38 (e)Sections 784.021, 784.07(2)(c), and 784.08(2)(b), 39 relating to aggravated assault; 40 (f)Sections 784.03, 784.07(2)(b), and 784.08(2)(c), 41 relating to battery; 42 (g)Sections 784.045, 784.07(2)(d), and 784.08(2)(a), 43 relating to aggravated battery; 44 (h)Section 827.03(2)(c), relating to child abuse; 45 (i)Section 827.03(2)(a), relating to aggravated child 46 abuse; 47 (j)Section 825.102(1), relating to abuse of an elderly 48 person or disabled adult; 49 (k)Section 825.102(2), relating to aggravated abuse of an 50 elderly person or disabled adult; 51 (l)Section 827.071, relating to sexual performance by 52 person less than 18 years of age; 53 (m)Sections 796.07 and 796.08, relating to prostitution; 54 (n)Section 381.0041(11)(b), relating to donation of blood, 55 plasma, organs, skin, or other human tissue; or 56 (n)(o)Sections 787.06(3)(b), (d), (f), and (g), relating 57 to human trafficking, 58 59 the court shall order the offender to undergo HIV testing, to be 60 performed under the direction of the Department of Health in 61 accordance with s. 381.004, unless the offender has undergone 62 HIV testing voluntarily or pursuant to procedures established in 63 s. 381.004(2)(h)6. or s. 951.27, or any other applicable law or 64 rule providing for HIV testing of criminal offenders or inmates, 65 subsequent to her or his arrest for an offense enumerated in 66 paragraphs (a)-(m) (a)-(n) for which she or he was convicted or 67 to which she or he pled nolo contendere or guilty. The results 68 of an HIV test performed on an offender pursuant to this 69 subsection are not admissible in any criminal proceeding arising 70 out of the alleged offense. 71 (3)An offender who has undergone HIV testing pursuant to 72 subsection (1), and to whom positive test results have been 73 disclosed pursuant to subsection (2), who commits a second or 74 subsequent offense enumerated in paragraphs (1)(a)-(m) (1)(a) 75 (n), commits criminal transmission of HIV, a misdemeanor of the 76 first felony of the third degree, punishable as provided in s. 77 775.082 or, s. 775.083, or s. 775.084. A person may be convicted 78 and sentenced separately for a violation of this subsection and 79 for the underlying crime enumerated in paragraphs (1)(a)-(m) 80 (1)(a)-(n). 81 (6)For an alleged violation of any offense enumerated in 82 paragraphs (1)(a)-(m) (1)(a)-(n) for which the consent of the 83 victim may be raised as a defense in a criminal prosecution, it 84 is an affirmative defense to a charge of violating this section 85 that the person exposed knew that the offender was infected with 86 HIV, knew that the action being taken could result in 87 transmission of the HIV infection, and consented to the action 88 voluntarily with that knowledge. 89 Section 2.Section 796.08, Florida Statutes, is amended to 90 read: 91 796.08Screening for HIV and sexually transmissible 92 diseases; providing penalties. 93 (1)(a)As used in this section, the term For the purposes 94 of this section, sexually transmissible disease means a 95 bacterial, viral, fungal, or parasitic disease, determined by 96 rule of the Department of Health to be sexually transmissible, a 97 threat to the public health and welfare, and a disease for which 98 a legitimate public interest is served by providing for 99 regulation and treatment. 100 (b)In considering which diseases are designated as 101 sexually transmissible diseases, the Department of Health shall 102 consider such diseases as chancroid, gonorrhea, granuloma 103 inguinale, lymphogranuloma venereum, genital herpes simplex, 104 chlamydia, nongonococcal urethritis (NGU), pelvic inflammatory 105 disease (PID)/acute salpingitis, syphilis, and human 106 immunodeficiency virus infection for designation and shall 107 consider the recommendations and classifications of the Centers 108 for Disease Control and Prevention and other nationally 109 recognized authorities. Not all diseases that are sexually 110 transmissible need be designated for purposes of this section. 111 (2)A person arrested under s. 796.07 may request screening 112 for a sexually transmissible disease, including human 113 immunodeficiency virus, under direction of the Department of 114 Health and, if infected, shall submit to appropriate treatment 115 and counseling. A person who requests screening for a sexually 116 transmissible disease under this subsection must pay any costs 117 associated with such screening. 118 (3)A person convicted under s. 796.07 of prostitution or 119 procuring another to commit prostitution must undergo screening 120 for a sexually transmissible disease, including, but not limited 121 to, screening to detect exposure to the human immunodeficiency 122 virus, under direction of the Department of Health. If the 123 person is infected, he or she must submit to treatment and 124 counseling prior to release from probation, community control, 125 or incarceration. Notwithstanding the provisions of s. 384.29, 126 the results of tests conducted pursuant to this subsection shall 127 be made available by the Department of Health to the offender, 128 medical personnel, appropriate state agencies, state attorneys, 129 and courts of appropriate jurisdiction in need of such 130 information in order to enforce the provisions of this chapter. 131 (4)A person who commits prostitution or procures another 132 for prostitution and who, prior to the commission of such crime, 133 had tested positive for a sexually transmissible disease other 134 than human immunodeficiency virus infection and knew or had been 135 informed that he or she had tested positive for such sexually 136 transmissible disease and could possibly communicate such 137 disease to another person through sexual activity commits a 138 misdemeanor of the first degree, punishable as provided in s. 139 775.082 or s. 775.083. A person may be convicted and sentenced 140 separately for a violation of this subsection and for the 141 underlying crime of prostitution or procurement of prostitution. 142 (5)A person who: 143 (a)Commits or offers to commit prostitution; or 144 (b)Procures another for prostitution by engaging in sexual 145 activity in a manner likely to transmit the human 146 immunodeficiency virus, 147 148 and who, prior to the commission of such crime, had tested 149 positive for human immunodeficiency virus and knew or had been 150 informed that he or she had tested positive for human 151 immunodeficiency virus and could possibly communicate such 152 disease to another person through sexual activity commits 153 criminal transmission of HIV, a felony of the third degree, 154 punishable as provided in s. 775.082, s. 775.083, or s. 775.084. 155 A person may be convicted and sentenced separately for a 156 violation of this subsection and for the underlying crime of 157 prostitution or procurement of prostitution. 158 Section 3.Paragraphs (a) and (b) of subsection (2) and 159 paragraph (a) of subsection (3) of section 960.003, Florida 160 Statutes, are amended to read: 161 960.003Hepatitis and HIV testing for persons charged with 162 or alleged by petition for delinquency to have committed certain 163 offenses; disclosure of results to victims. 164 (2)TESTING OF PERSON CHARGED WITH OR ALLEGED BY PETITION 165 FOR DELINQUENCY TO HAVE COMMITTED CERTAIN OFFENSES. 166 (a)In any case in which a person has been charged by 167 information or indictment with or alleged by petition for 168 delinquency to have committed any offense enumerated in s. 169 775.0877(1)(a)-(m) s. 775.0877(1)(a)-(n), which involves the 170 transmission of body fluids from one person to another, upon 171 request of the victim or the victims legal guardian, or of the 172 parent or legal guardian of the victim if the victim is a minor, 173 the court shall order such person to undergo hepatitis and HIV 174 testing within 48 hours after the information, indictment, or 175 petition for delinquency is filed. In the event the victim or, 176 if the victim is a minor, the victims parent or legal guardian 177 requests hepatitis and HIV testing after 48 hours have elapsed 178 from the filing of the indictment, information, or petition for 179 delinquency, the testing shall be done within 48 hours after the 180 request. 181 (b)However, when a victim of any sexual offense enumerated 182 in s. 775.0877(1)(a)-(m) s. 775.0877(1)(a)-(n) is under the age 183 of 18 at the time the offense was committed or when a victim of 184 any sexual offense enumerated in s. 775.0877(1)(a)-(m) s. 185 775.0877(1)(a)-(n) or s. 825.1025 is a disabled adult or elderly 186 person as defined in s. 825.1025 regardless of whether the 187 offense involves the transmission of bodily fluids from one 188 person to another, then upon the request of the victim or the 189 victims legal guardian, or of the parent or legal guardian, the 190 court shall order such person to undergo hepatitis and HIV 191 testing within 48 hours after the information, indictment, or 192 petition for delinquency is filed. In the event the victim or, 193 if the victim is a minor, the victims parent or legal guardian 194 requests hepatitis and HIV testing after 48 hours have elapsed 195 from the filing of the indictment, information, or petition for 196 delinquency, the testing shall be done within 48 hours after the 197 request. The testing shall be performed under the direction of 198 the Department of Health in accordance with s. 381.004. The 199 results of a hepatitis and HIV test performed on a defendant or 200 juvenile offender pursuant to this subsection shall not be 201 admissible in any criminal or juvenile proceeding arising out of 202 the alleged offense. 203 (3)DISCLOSURE OF RESULTS. 204 (a)The results of the test shall be disclosed no later 205 than 2 weeks after the court receives such results, under the 206 direction of the Department of Health, to the person charged 207 with or alleged by petition for delinquency to have committed or 208 to the person convicted of or adjudicated delinquent for any 209 offense enumerated in s. 775.0877(1)(a)-(m) s. 775.0877(1)(a) 210 (n), which involves the transmission of body fluids from one 211 person to another, and, upon request, to the victim or the 212 victims legal guardian, or the parent or legal guardian of the 213 victim if the victim is a minor, and to public health agencies 214 pursuant to s. 775.0877. If the alleged offender is a juvenile, 215 the test results shall also be disclosed to the parent or 216 guardian. When the victim is a victim as described in paragraph 217 (2)(b), the test results must also be disclosed no later than 2 218 weeks after the court receives such results, to the person 219 charged with or alleged by petition for delinquency to have 220 committed or to the person convicted of or adjudicated 221 delinquent for any offense enumerated in s. 775.0877(1)(a)-(m) 222 s. 775.0877(1)(a)-(n), or s. 825.1025 regardless of whether the 223 offense involves the transmission of bodily fluids from one 224 person to another, and, upon request, to the victim or the 225 victims legal guardian, or the parent or legal guardian of the 226 victim, and to public health agencies pursuant to s. 775.0877. 227 Otherwise, hepatitis and HIV test results obtained pursuant to 228 this section are confidential and exempt from the provisions of 229 s. 119.07(1) and s. 24(a), Art. I of the State Constitution and 230 shall not be disclosed to any other person except as expressly 231 authorized by law or court order. 232 Section 4.Paragraph (b) of subsection (2) of section 233 98.0751, Florida Statutes, is amended to read: 234 98.0751Restoration of voting rights; termination of 235 ineligibility subsequent to a felony conviction. 236 (2)For purposes of this section, the term: 237 (b)Felony sexual offense means any of the following: 238 1.Any felony offense that serves as a predicate to 239 registration as a sexual offender in accordance with s. 240 943.0435; 241 2.Section 491.0112; 242 3.Section 784.049(3)(b); 243 4.Section 794.08; 244 5.Section 796.08; 245 6.Section 800.101; 246 6.7.Section 826.04; 247 7.8.Section 847.012; 248 8.9.Section 872.06(2); 249 9.10.Section 944.35(3)(b)2.; 250 10.11.Section 951.221(1); or 251 11.12.Any similar offense committed in another 252 jurisdiction which would be an offense listed in this paragraph 253 if it had been committed in violation of the laws of this state. 254 Section 5.Paragraph (h) of subsection (2) of section 255 381.004, Florida Statutes, is amended to read: 256 381.004HIV testing. 257 (2)HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED CONSENT; 258 RESULTS; COUNSELING; CONFIDENTIALITY. 259 (h)Paragraph (a) does not apply: 260 1.When testing for sexually transmissible diseases is 261 required by state or federal law, or by rule, including the 262 following situations: 263 a.HIV testing pursuant to s. 796.08 of persons convicted 264 of prostitution or of procuring another to commit prostitution. 265 b.HIV testing of inmates pursuant to s. 945.355 before 266 their release from prison by reason of parole, accumulation of 267 gain-time credits, or expiration of sentence. 268 c.Testing for HIV by a medical examiner in accordance with 269 s. 406.11. 270 d.HIV testing of pregnant women pursuant to s. 384.31. 271 2.To those exceptions provided for blood, plasma, organs, 272 skin, semen, or other human tissue pursuant to s. 381.0041. 273 3.For the performance of an HIV-related test by licensed 274 medical personnel in bona fide medical emergencies if the test 275 results are necessary for medical diagnostic purposes to provide 276 appropriate emergency care or treatment to the person being 277 tested and the patient is unable to consent, as supported by 278 documentation in the medical record. Notification of test 279 results in accordance with paragraph (c) is required. 280 4.For the performance of an HIV-related test by licensed 281 medical personnel for medical diagnosis of acute illness where, 282 in the opinion of the attending physician, providing 283 notification would be detrimental to the patient, as supported 284 by documentation in the medical record, and the test results are 285 necessary for medical diagnostic purposes to provide appropriate 286 care or treatment to the person being tested. Notification of 287 test results in accordance with paragraph (c) is required if it 288 would not be detrimental to the patient. This subparagraph does 289 not authorize the routine testing of patients for HIV infection 290 without notification. 291 5.If HIV testing is performed as part of an autopsy for 292 which consent was obtained pursuant to s. 872.04. 293 6.For the performance of an HIV test upon a defendant 294 pursuant to the victims request in a prosecution for any type 295 of sexual battery where a blood sample is taken from the 296 defendant voluntarily, pursuant to court order for any purpose, 297 or pursuant to s. 775.0877, s. 951.27, or s. 960.003; however, 298 the results of an HIV test performed shall be disclosed solely 299 to the victim and the defendant, except as provided in ss. 300 775.0877, 951.27, and 960.003. 301 7.If an HIV test is mandated by court order. 302 8.For epidemiological research pursuant to s. 381.0031, 303 for research consistent with institutional review boards created 304 by 45 C.F.R. part 46, or for the performance of an HIV-related 305 test for the purpose of research, if the testing is performed in 306 a manner by which the identity of the test subject is not known 307 and may not be retrieved by the researcher. 308 9.If human tissue is collected lawfully without the 309 consent of the donor for corneal removal as authorized by s. 310 765.5185 or enucleation of the eyes as authorized by s. 765.519. 311 10.For the performance of an HIV test upon an individual 312 who comes into contact with medical personnel in such a way that 313 a significant exposure has occurred during the course of 314 employment, within the scope of practice, or during the course 315 of providing emergency medical assistance to the individual. The 316 term medical personnel includes a licensed or certified health 317 care professional; an employee of a health care professional or 318 health care facility; employees of a laboratory licensed under 319 chapter 483; personnel of a blood bank or plasma center; a 320 medical student or other student who is receiving training as a 321 health care professional at a health care facility; and a 322 paramedic or emergency medical technician certified by the 323 department to perform life-support procedures under s. 401.23. 324 a.The occurrence of a significant exposure shall be 325 documented by medical personnel under the supervision of a 326 licensed physician and recorded only in the personnel record of 327 the medical personnel. 328 b.Costs of an HIV test shall be borne by the medical 329 personnel or the employer of the medical personnel. However, 330 costs of testing or treatment not directly related to the 331 initial HIV tests or costs of subsequent testing or treatment 332 may not be borne by the medical personnel or the employer of the 333 medical personnel. 334 c.In order to use the provisions of this subparagraph, the 335 medical personnel must be tested for HIV pursuant to this 336 section or provide the results of an HIV test taken within 6 337 months before the significant exposure if such test results are 338 negative. 339 d.A person who receives the results of an HIV test 340 pursuant to this subparagraph shall maintain the confidentiality 341 of the information received and of the persons tested. Such 342 confidential information is exempt from s. 119.07(1). 343 e.If the source of the exposure is not available and will 344 not voluntarily present himself or herself to a health facility 345 to be tested for HIV, the medical personnel or the employer of 346 such person acting on behalf of the employee may seek a court 347 order directing the source of the exposure to submit to HIV 348 testing. A sworn statement by a physician licensed under chapter 349 458 or chapter 459 that a significant exposure has occurred and 350 that, in the physicians medical judgment, testing is medically 351 necessary to determine the course of treatment constitutes 352 probable cause for the issuance of an order by the court. The 353 results of the test shall be released to the source of the 354 exposure and to the person who experienced the exposure. 355 11.For the performance of an HIV test upon an individual 356 who comes into contact with nonmedical personnel in such a way 357 that a significant exposure has occurred while the nonmedical 358 personnel provides emergency medical assistance during a medical 359 emergency. For the purposes of this subparagraph, a medical 360 emergency means an emergency medical condition outside of a 361 hospital or health care facility that provides physician care. 362 The test may be performed only during the course of treatment 363 for the medical emergency. 364 a.The occurrence of a significant exposure shall be 365 documented by medical personnel under the supervision of a 366 licensed physician and recorded in the medical record of the 367 nonmedical personnel. 368 b.Costs of any HIV test shall be borne by the nonmedical 369 personnel or the employer of the nonmedical personnel. However, 370 costs of testing or treatment not directly related to the 371 initial HIV tests or costs of subsequent testing or treatment 372 may not be borne by the nonmedical personnel or the employer of 373 the nonmedical personnel. 374 c.In order to use the provisions of this subparagraph, the 375 nonmedical personnel shall be tested for HIV pursuant to this 376 section or shall provide the results of an HIV test taken within 377 6 months before the significant exposure if such test results 378 are negative. 379 d.A person who receives the results of an HIV test 380 pursuant to this subparagraph shall maintain the confidentiality 381 of the information received and of the persons tested. Such 382 confidential information is exempt from s. 119.07(1). 383 e.If the source of the exposure is not available and will 384 not voluntarily present himself or herself to a health facility 385 to be tested for HIV, the nonmedical personnel or the employer 386 of the nonmedical personnel acting on behalf of the employee may 387 seek a court order directing the source of the exposure to 388 submit to HIV testing. A sworn statement by a physician licensed 389 under chapter 458 or chapter 459 that a significant exposure has 390 occurred and that, in the physicians medical judgment, testing 391 is medically necessary to determine the course of treatment 392 constitutes probable cause for the issuance of an order by the 393 court. The results of the test shall be released to the source 394 of the exposure and to the person who experienced the exposure. 395 12.For the performance of an HIV test by the medical 396 examiner or attending physician upon an individual who expired 397 or could not be resuscitated while receiving emergency medical 398 assistance or care and who was the source of a significant 399 exposure to medical or nonmedical personnel providing such 400 assistance or care. 401 a.HIV testing may be conducted only after appropriate 402 medical personnel under the supervision of a licensed physician 403 documents in the medical record of the medical personnel or 404 nonmedical personnel that there has been a significant exposure 405 and that, in accordance with the written protocols based on the 406 National Centers for Disease Control and Prevention guidelines 407 on HIV postexposure prophylaxis and in the physicians medical 408 judgment, the information is medically necessary to determine 409 the course of treatment for the medical personnel or nonmedical 410 personnel. 411 b.Costs of an HIV test performed under this subparagraph 412 may not be charged to the deceased or to the family of the 413 deceased person. 414 c.For this subparagraph to be applicable, the medical 415 personnel or nonmedical personnel must be tested for HIV under 416 this section or must provide the results of an HIV test taken 417 within 6 months before the significant exposure if such test 418 results are negative. 419 d.A person who receives the results of an HIV test 420 pursuant to this subparagraph shall comply with paragraph (e). 421 13.For the performance of an HIV-related test medically 422 indicated by licensed medical personnel for medical diagnosis of 423 a hospitalized infant as necessary to provide appropriate care 424 and treatment of the infant if, after a reasonable attempt, a 425 parent cannot be contacted to provide consent. The medical 426 records of the infant must reflect the reason consent of the 427 parent was not initially obtained. Test results shall be 428 provided to the parent when the parent is located. 429 14.For the performance of HIV testing conducted to monitor 430 the clinical progress of a patient previously diagnosed to be 431 HIV positive. 432 15.For the performance of repeated HIV testing conducted 433 to monitor possible conversion from a significant exposure. 434 Section 6.This act shall take effect July 1, 2022.