64D-2.003. Confidentiality

(1) Any person, including employees of the department, any county health department, contract provider, testing program authorized by the department or health care facility, and health care provider shall comply with the confidentiality provisions of Sections 381.004(2)(e) and (f), F.S., and this rule.

(2) No person, including employees of health care facilities and health care providers as defined in subsections 64D-2.002(5) and (6), F.A.C., shall disclose or be compelled to disclose the identity of a test subject or his or her HIV test results, except to persons listed in Sections 381.004(2)(e)-(g), F.S., and the following persons:

(a) An agent or employee has a need to know the identity of a test subject or his or her HIV test result if:

1. The agent or employee has a need to know to discharge properly his or her duties in the ordinary course of participating in or administering the business operations of a health care facility or health care provider. Examples of these agents or employees are:

a. Financial staff who compile or review patient records as part of routine billing activities.

b. Transcribers who enter medical information into computers or records.

c. Personnel involved in utilization review, risk management or peer review activities in which patient records are normally shared among reviewers.

d. Supervisors responsible for the activities described in subparagraph 2., below.

2. The agent or employee has a need to know the identity of a test subject or his or her HIV test results to discharge properly his or her duties in the ordinary course of providing patient care. Examples of these agents or employees include, but are not limited to:

a. Licensed professionals, such as physicians, nurses or social workers, who normally are permitted to review the medical record of a test subject.

b. Licensed professionals who regularly participate as part of a multi-disciplinary medical team responsible for the care of patients located on a particular ward or floor, but who can not themselves provide or determine diagnosis or treatment of a test subject.

3. The agent or employee has a need to know the identity of a test subject or his or her HIV test results to learn or to teach properly in the ordinary course of an approved educational program in a medical teaching facility or a research program under Chapter 405, F.S. Examples of these agents or employees include, but are not limited to:

a. Students, interns, and residents involved in making rounds at a teaching hospital.

b. Researchers and their assistants engaged in research authorized under Chapter 405, F.S.

(b) A health care provider involved in the delivery of a child can note the mother’s HIV test results on the child’s medical record.

(c) Those persons authorized under Section 796.08(3), F.S., to receive HIV test results of convicted prostitutes tested pursuant to Section 796.08(3), F.S.

(d) Pursuant to Sections 960.003 and 775.0877(2), F.S., the victim of a criminal offense involving the transmission of body fluids from one person to another shall, upon request, obtain the HIV test results of the person charged with or convicted of the criminal offense. The test results shall be disclosed in accordance with Section 381.004(2)(e), F.S.

(e) In accordance with Section 456.061, F.S., a practitioner regulated through the Division of Medical Quality Assurance of the Department of Health can disclose the identity of an HIV positive patient to the patient’s sex or needle-sharing partner. Any notification of a sex or needle-sharing partner pursuant to this section shall be done in accordance with the “Partner Notification Protocol for Practitioners,” (dated April 2012), incorporated by reference in this rule and available at https://www.flrules.org/Gateway/reference.asp?No=Ref-02049.

(f) Employees of the Department of Children and Families, child placing or child-caring agencies, or of family foster homes licensed pursuant to Section 409.175, F.S., who are directly involved in the placement, care, control, or custody of a test subject and have a need to know such information pursuant to subsection 65C-28.004(9), F.A.C. (effective 5/4/2006); the adoptive parents of the test subject pursuant to Rule 65C-16.011, F.A.C. (effective 11/30/2008); or the adult custodian, adult relative or other person who is responsible for the child’s welfare, if the test subject was not tested pursuant to Section 384.30, F.S., and if, after a reasonable attempt, the parent or legal guardian cannot be located and informed of the test result. The details of the reasonable attempt must be documented in the medical record of the child. The rules of the Department of Children and Families are incorporated by reference and can be obtained from the Department or online at https://www.flrules.org/Gateway/reference.asp?No=Ref-02050, and https://www.flrules.org/Gateway/reference.asp?No=Ref-02051.

(3) All patient records, client records or medical records shall be kept in the following manner:

(a) Documentation of informed consent in a nonhealth care setting or refusal to be tested in a health care setting and HIV test results shall be kept in a patient’s medical record. The confidentiality requirements of this rule shall not prohibit the computerization of medical records including HIV test results when such records are kept in accordance with sound practices of record keeping.

(b) No patient records shall be marked, coded or distinguished on the outside so as to identify HIV test results or that an HIV test was or was not performed.

(c) The health care facility or residential facility shall establish a uniform procedure to maintain confidential medical records which ensures access only to persons authorized to review or receive the contents.

(4) The anonymity of individuals tested for HIV in county health department anonymous test sites or other testing programs approved through the department registration process to conduct anonymous testing, shall be ensured as follows:

(a) Names or other specified identifying information about test subjects shall not be collected.

(b) A unique identification number shall be assigned to the test subject, and identically numbered labels shall be used to identify all records and blood specimens;

(c) The identification number shall be given to the individual for the individual to secure test results and receive ancillary services at a later time; and,

(d) Fees shall not be charged for HIV anonymous testing if the test subject verbally declares an inability to pay in accordance with Section 402.33, F.S.

Rulemaking Authority 381.004, 381.0041(10), 384.33 FS. Law Implemented 381.0011, 381.004, 381.0041, 384.29, 456.061 FS. History–New 11-6-85, Formerly 10D-93.64, Amended 7-12-89, 5-30-90, 1-20-92, Formerly 10D-93.064, Amended 8-24-99, 1-3-13, 9-5-16.