HIV patients and those required to take HIV tests have special rights in Florida that protect their status as an HIV patient. Those rights also extend to individuals required to take HIV tests.
Although HIV is no longer feared as much as it was in the 80s, thanks to advances in medicine and amazing treatments for the disease that have radically extended the lives of HIV carriers, a significant social stigma still exists for those affected by the disease.
Years ago, the Florida legislature put in place a law to protect people from having to publicly suffer the social stigma associated with the disease. That law provides special protections for persons with HIV/AIDS and for persons taking HIV tests.
Fla. Stat. § 381.004(2)(e) provides that the identity of any person upon whom an HIV test has been performed is confidential and is exempt from disclosure under Florida’s Public Records laws. It also provides that any person who has obtained or knows a test result cannot disclose that result and they cannot be compelled to disclose the test result in a manner that identifies the person who took the HIV test except in very limited circumstances.
Fla. Stat. 381.004(2)(f) provides that whenever a disclosure is made concerning any HIV test of a patient that it contain a specific written statement that: “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.” If an oral disclosure is made, the statute requires that an oral notice be provided and followed by the previously mentioned written notice within 10 days of the disclosure.
The statute also provides penalties for violations of the statute. Fla. Stat. § 381.004(5) provides that a violation by a facility or licensed health care provider is grounds for disciplinary action under the facility or professional’s licensing chapter found in Florida’s statutes. It also provides potential criminal charges, making any illegal disclosure a misdemeanor of the first degree.
This enables persons who have had their status or testing disclosed to sue the medical providers, insurance companies, or sometimes even employers who disclosed this type of information contrary to the law.
One of the most significant cases in Florida that provides protections for medical privacy rights dealt with an HIV testing case and discussed the Florida law that provides these protections. That case was Florida Dept. of Corr. v. Abril, 969 So. 2d 201 (Fla. 2007).
If your HIV or AIDS status has been disclosed without your authorization or your HIV testing has been disclosed without your authorization, you have legal rights.
Here at the McKenzie Law Firm, we believe strongly in your medical privacy rights under Florida law and HIPAA.