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Florida state laws and regulations that affect your medical practice

1. What sort of consent is required for HIV testing?

No person shall order a test without first obtaining the informed consent of the person being tested. The person must be advised that a positive HIV result will be reported to the county health department with sufficient information to identify the test subject and on the availability and location of sites at which anonymous testing is performed.

Informed consent is not required when testing for sexually transmissible diseases is required by state or federal law for the following situations: testing persons convicted of prosecution or of procuring another to commit prostitution; testing of inmates prior to their release from prison; testing by a medical examiner; testing of pregnant women; and testing of blood, plasma, organs, skin, semen, or other human tissue for medical use; and bona fide medical emergencies or acute illness where the patient is unable to consent.

2. Must consent be obtained from the parents of a minor?

The consent of the parents or guardians of a minor is not a prerequisite for an examination or treatment for HIV/AIDS. The fact of consultation, examination and treatment of a minor for a sexually transmissible disease is confidential and shall not be divulged in any direct or indirect manner, such as sending a bill for services rendered to a parent or guardian.

F.S.A. § 384-30

3. How should a physician notify the test subject of his/her test results and what other information should be provided?

The physician must ensure that all reasonable efforts are made to notify the patient of his/her test result. Notification of a person with a positive test result shall include information on the availability of appropriate medical and support services, on the importance of notifying partners who may have been exposed, and on preventing transmission of HIV. Notification of a person with a negative test result shall include, as appropriate, information on preventing the transmission of HIV.

F.S.A. § 381.004

4. What are the reporting requirements for HIV-positive test results?

Each person who makes a diagnosis of or treats a person with a sexually transmissible disease including HIV or AIDS shall report such facts to the Department of Health within a period of time not to exceed 2 weeks. The method of reporting must ensure the confidentiality of persons infected with HIV. Any newborn or infant up to 18 months of age who has been exposed to HIV must be reported. The reporting may not relate to anonymous HIV testing programs.

F.S.A. 384.25

5. May physicians test patients for HIV or AIDS anonymously?

Physicians may direct patients who want to remain anonymous to facilities that are designated by the Department of Health to do anonymous testing.

F.S.A. 381.004

6. Must a physician inform a patient of the physician's own HIV infection or AIDS condition?

The courts are still attempting to define the rights of health care workers with HIV, especially those who perform invasive procedures. In New Jersey, the Superior Court held in Estate of William Behringer, M.D. v. The Medical Center at Princeton, 249 N.J. Super. 597 (Law Div. 1991), that an HIV-infected physician must disclose his or her HIV status to patients, in keeping with the commitment of New Jersey courts to the concept of informed consent. The New Jersey court's disclosure requirement seems to apply to all physicians, regardless of specialty or whether any invasive or exposure-prone procedures will be performed.

Similarly, in Doe v. University of Maryland Medical System Corporation, 50 F. 3d 1261 (1995), the U.S. Court of Appeals, Fourth Circuit held that an HIV positive surgeon could not allege violations of the Americans with Disabilities Act (ADA) for his suspension from surgical duties because he posed a significant risk to patients through percutaenous injury that could not be eliminated by reasonable accommodation.

Since this area of law is unsettled, an HIV-positive health care worker should always consult with his/her attorney with any questions as to his/her rights.

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.

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