The Legislature determined that making test results confidential would lead to more people testing for HIV. Generally, a person may not disclose the identity of a person tested or the results of a HIV test. To do so can be a misdemeanor; if done maliciously or for gain, this can be a felony.

There are numerous exceptions, though, to the rule. These people can be told of a test and of the identity of the subject:

The subject of the test

The legally authorized representative of the subject

Anyone the subject or the legally authorized representative authorizes in writing

Anyone who has received significant exposure to the subject’s HIV-possible fluids

Employer of the significantly exposed person as necessary to file a worker’s compensation claim or other disability claim

The health care provider (positive preliminary test only; may be told identity and any test result if has need to know or when dealing with a human body part from a deceased person)

The doctor caring for the subject

Other doctors the doctor may need to consult to reach a diagnosis

Health facility staff committees when conducting evaluation and review

Those authorized by court order after a hearing demonstrating compelling need which cannot be otherwise met. (The subject has a right to participate in the hearing. This is not a public hearing unless the subject agrees otherwise or the court finds a public hearing is necessary in the public interest and for the proper administration of justice.)

Department of Health

County health department (positive result only)

Insurers

Child agencies involved with test subject

Adult custodian, adult relative or adult responsible for welfare of a child subject

Developmentally disabled agencies involved with test subject

Sheriff or correctional officers responsible for the care of the subject if subject is an inmate

Violating confidentiality provisions can be a misdemeanor. Disclosing maliciously or for monetary gain that a person has HIV or AIDS to a person not on the list of confidentiality exceptions may be a felony.

HIV testing in Florida generally requires the informed consent of the person being tested. Prior to consent, the subject must be told of the confidentiality of the subject’s identity and of the test’s results to the limits imposed by law, of the disclosure of positive results and the subject’s identity to the county health department, and of the whereabouts and hours of anonymous testing sites. This consent need not be written or signed by the client but the medical record must be noted that the explanations were given and consent received. Prior to the test, a post-test visit should be scheduled for discussing test results and for counseling.

There are numerous exceptions to the general rule. In the following circumstances, a test subject does not need to give consent in order to have a HIV test administered:

the subject is not competent to consent or a minor and has a legal guardian consent on subject’s behalf

in an emergency when the subject is unable to consent and the test is necessary for diagnosis

the attending physician determines obtaining informed consent would be detrimental to the patient and the test is needed for the medical diagnosis of acute illness

the subject is dead and the medical examiner is performing an autopsy

the subject is dead and others had significant exposure to HIV-possible fluids while providing emergency medical assistance or care. Requires documentation by a licensed physician that significant exposure occurred and the test is necessary to determine a course of treatment. Such personnel must be tested themselves or provide a negative test taken within 6 months prior to the significant exposure.

when federal law requires STD testing

donated blood, plasma, organ, skin and other human tissue in certain circumstances

pregnant woman (though woman must be told of the test and of her right to refuse it)

infant in hospital when parent cannot be reached and test is medically indicated

subsequent testing of previously diagnosed HIV-positive subject to monitor clinical progress

upon the request of a victim of sexual battery in which the subject is the perpetrator

court order

epidemiological research

when personnel have received significant exposure to HIV-possible fluids (if such personnel have a vial of voluntarily obtained blood from the subject and the subject cannot be found, the vial can be tested without the subject’s consent. Reasonable, documented attempts must be made to locate the subject and obtain consent.) Such personnel must be tested themselves or provide a negative test taken within 6 months prior to the significant exposure.

personnel providing emergency medical treatment to subject outside a hospital during which significant exposure to HIV-possible fluid occurs. Consent should be requested. A licensed physician must document there has been a significant exposure and that the test is medically necessary to determine a course of treatment. Such personnel must be tested themselves or provide a negative test taken within 6 months prior to the significant exposure. The present test must be performed during the course of the medical emergency; outside of that time frame and if the subject will not consent, a court order for the test must be sought.

if the subject has been convicted or prostitution or of procuring others to commit prostitution

an inmate

The person ordering the test (or that person’s designee) must make “all reasonable efforts” to tell the subject what the results of the test are. When the test results are positive, notification includes 3 things: information on medical and support services, the importance of notifying possibly-exposed partners, and preventing further transmission of HIV. Only the last item is necessary when the notification involves a negative test result.

In some circumstances, the subject may have departed the test venue before the results come back (hospital emergency room or detention facility, for example.) In that case, telling the county health department satisfies the notification requirement. A blood donor whose HIV test is positive shall be notified by certified letter; the chance to discuss this by phone or in person is offered. If the person does not respond within 30 days, the actual test results and other required information are sent to the donor by certified mail.

A practitioner regulated by the Division of Medial Quality Assurance of the Department of Health may (but is not required to) notify the subject’s partner without the subject’s consent if the following 4 conditions are met:

the HIV-positive patient tells the practitioner the identity of the partner

the practitioner recommends notification of the partner including advice to refrain from dangerous activity which might transmit the virus

patient refuses notification

practitioner informs patient the practitioner intends to notify the patient’s partner

Each county shall provide these services:

Voluntary, anonymous and confidential HIV testing program

Counseling

Notice of partner-notification services

Pre-testing counseling must be offered at the testing program. The following points should then be covered: the meaning of a HIV test, medical indications for such a test, the possibility of false results (whether positive or negative), the possible need of a second (confirmatory) test, the possible impact (social, medical, economic) of a positive result, and the need to eliminate behavior which entails a high risk of contracting HIV.

Before any positive results are given to the patient, a confirmatory test must be provided.

Post-test, in-person counseling must be offered at the testing program. This should cover the same points as the pre-testing counseling except the possible false results issue may be omitted. This post-test counseling can only be offered by specially trained counselors, alert to the possibility of suicidal behavior and able to offer the patient referrals to further appropriate health and social services.