HIV TESTING

An estimated 1.2 million people in the United States are infected with HIV, including about 158,500 people who are unaware of their status. Nearly 40% of new HIV infections are transmitted by people who do not know they have the virus. HIV testing is the first step in preventing transmission of the virus to others. HIV tests are quite accurate, but no test can detect the virus immediately after infection (CDC, 2022c).

Types of HIV Tests

There are three types of HIV tests:

Antibody tests detect antibodies to HIV in the person’s blood or oral fluid. Antibody tests have a window of 23–90 days before HIV can be detected after an exposure. Antibody tests that use blood from a vein can detect HIV sooner after infection than tests performed with blood from a finger stick or with oral fluid. Most rapid tests and HIV self-tests are antibody tests.

Antigen/antibody tests look for both HIV antibodies and antigens. Antibodies are produced by a person’s immune system following an exposure to a virus such as HIV. Antigens are foreign substances that cause a person’s immune system to activate. If a person becomes infected with HIV, the antigen p24 is produced before antibodies develop. An antigen/antibody test performed by a lab on blood from a vein can usually detect HIV 18–45 days after exposure. There is also a rapid antigen/antibody test available that is done with a finger stick. Antigen/antibody tests done with blood from a finger stick can take from 18–90 days after exposure to detect HIV.

Nucleic acid tests (NATs) directly test for HIV in the blood. This test is recommended for those who have had a recent exposure or a possible exposure with early symptoms of HIV and have tested negative with an antibody or antigen/antibody test. The window period before detection can occur for NATS is 10–33 days following exposure (CDC, 2022e).

Who Should Be Tested?

The CDC (2022c) and the state of Florida (FL DOH, 2023) recommend that everyone between the ages of 13 and 64 be tested for HIV at least once as part of routine healthcare.

Recommendations call for people with higher risk factors to be tested at least annually. These individuals include:

• Sexually active gay or bisexual men (some of whom may benefit from even more frequent testing, such as every 3–6 months)
• People who have had sex with an HIV-positive partner
• People who have had more than one partner since their last HIV test
• Those who have shared needles (“works”) to inject drugs
• People who have exchanged sex for drugs or money
• People who have another sexually transmitted disease, hepatitis, or tuberculosis

HIV testing is mandatory in the United States for:

• Blood and organ donors
• Military applicants and active-duty personnel
• Federal and state prison inmates
• Newborns in some states
  (KFF, 2022)

Additionally, Florida mandates testing for specific populations, as described below:

PREGNANT WOMEN

Florida Statute 64D-3.042 requires all pregnant women to be tested for sexually transmitted diseases (STDs), including HIV, chlamydia, gonorrhea, hepatitis B, and syphilis, at the initial prenatal care visit and again at 28–32 weeks’ gestation. Women who present in labor and delivery or within 30 days postpartum with no record of STD testing after 27 weeks’ gestation are considered at a high risk and should be tested for HIV, hepatitis B, and syphilis (FL DOH, 2022).

Exceptions to the testing outlined above state:

• A woman who tested positive for hepatitis B surface antigen (HbsAg) during the initial examination related to her current pregnancy need not be retested at 28–32 weeks gestation.
• A woman with documentation of HIV infection or AIDS need not be retested during the current pregnancy.

Women shall be considered at a high risk for sexually transmissible diseases and shall be tested for hepatitis B surface antigen (HBsAg), HIV, and syphilis prior to discharge, who appear at delivery or within 30 days postpartum with:

• No record of prenatal care
• Prenatal care with no record of testing
• Prenatal care with no record of testing after the 27th week of gestation
  (FL DOH, 2022)

Prior to any testing required by this rule, practitioners shall:

• Notify the woman which tests will be conducted
• Inform the woman of her right to refuse any or all tests
• Place a written statement of objection signed by the woman each time she refuses required testing in her medical record specifying which tests were refused
• If the woman refuses to sign the statement, document the refusal in the medical record; and no testing shall occur for the infections specified in the refusal statement of objection
  (FL DOS, 2020)

CORRECTIONAL POPULATIONS

According to Florida law, if an inmate’s HIV status is unknown to the Department of Corrections, the department shall perform an HIV test on the inmate not less than 60 days prior to the inmate’s presumptive release date from prison by reason of parole, accumulation of gain-time credits, or expiration of sentence. An inmate who is known to be HIV positive or who has been tested within the previous year and does not request retesting need not be tested.

Those who test positive are to be provided special transitional assistance, which must include:

• Education on preventing transmission of the virus to others and on the importance of follow-up care and treatment
• A written, individualized discharge plan that includes referrals to and contacts with the county health department and local HIV primary care services in the area where the inmate plans to reside
• A 30-day supply of all HIV/AIDS-related medications that the inmate is taking prior to release under the protocols of the Department of Corrections and the treatment guidelines of the United States Department of Health and Human Services
  (FL Legislature, 2023)

Testing and Informed Consent in Florida

One of the key components of Florida’s plan to eliminate HIV transmission and reduce HIV-related deaths is the implementation of routine HIV screening in healthcare settings and priority testing in nonhealthcare settings.

OBTAINING CONSENT

In Florida, in a healthcare setting, persons shall be notified orally or in writing that an HIV test is planned and that they have the right to decline the test. A person who has signed a general consent form for medical care is not required to sign or otherwise provide a separate consent for HIV testing.

In a nonhealthcare setting where testing is being done, a provider shall obtain informed consent preceded by an explanation of the right to confidential treatment of information. The provider shall also inform the person that a positive HIV test result will be reported to the county health department.

Informed consent must be obtained from a legal guardian or other authorized person if the person being tested is not competent, is incapacitated, or is otherwise unable to make an informed judgment (FL Legislature, 2023).

Minors in Florida (unemancipated children under the age of 18) are considered adults and do not require parental or guardian consent for the examination and treatment of sexually transmissible diseases, including HIV testing and treatment (FL Legislature, 2023).

TESTING WITHOUT INFORMED CONSENT

HIV testing without informed consent may occur in the following circumstances:

• Bona fide medical emergencies if results are necessary for medical diagnostic purposes to provide appropriate care and the patient is unable to consent
• Court-mandated testing
• Epidemiological research consistent with institutional review boards (identity of test subject is not known and may not be retrieved by the researcher)
• Lawfully collected human tissue without the consent of the donor for corneal removal or enucleation of the eyes
• Significant exposures of medical personnel during the course of employment, within the scope of practice, or during provision of emergency medical assistance
• Significant exposures of nonmedical personnel while providing emergency medical assistance during a medical emergency
• Persons convicted of prostitution or of procuring another to commit prostitution
• Prison inmates prior to release (see above)
• Criminal acts, when victims of criminal offenses involving transmission of body fluids obtain a court order to test a defendant
• Hospitalized infants for which testing is diagnostically indicated for the appropriate care and treatment of the infant if, after a reasonable attempt, a parent cannot be contacted to provide consent
• Repeat HIV testing, when performing HIV testing to monitor the clinical progress of a patient previously diagnosed as HIV-positive or repeat HIV testing conducted to monitor possible conversion from a significant exposure
  (FL Legislature, 2023)

CONFIDENTIALITY

The identity of any person upon whom a test has been performed and the test results are both confidential. No person who has obtained or has knowledge of a test result may disclose or be compelled to disclose the identity of any person upon whom a test is performed, or the results of such a test, in a manner that permits identification of the subject of the test, except to:

• The subject of the test or the subject’s legally authorized representative
• Any person, including third-party payors, designated in a legally effective release of test results executed prior to or after the test by the subject of the test or the subject’s legally authorized representative
• The public health department
• An authorized agent or employee of a health facility and healthcare provider authorized to obtain the test results
• Healthcare providers consulting between themselves or with healthcare facilities for diagnosis and treatment decisions
• Health facility or provider that procures, processes, distributes, or uses donor body parts or semen
• Healthcare facility staff committees for program monitoring, evaluation, or service reviews
• Authorized medical or epidemiological researchers
• A person allowed access by a court order
• A person allowed by order of a judge of compensation claims
• Employees of the department or of child-placing and child-caring agencies or of family foster homes
• Adoptive parents of the person, or any adult custodian, adult relative, or person responsible for a child’s welfare
• Employees of residential facilities or of community-based care programs caring for developmentally disabled persons
• A healthcare provider involved in the delivery of a child, who can note the mother’s HIV test results in the child’s medical record
• Medical or nonmedical personnel who have received significant exposure
• The medical examiner, who shall disclose results to the health department
  (FL Legislature, 2023)

Any violation of confidentiality provisions shall be grounds for disciplinary action contained in the facility’s or professional’s respective licensing chapter. Any person who violates the confidentiality provisions commits a first-degree misdemeanor, punishable by a definite term of imprisonment not exceeding one year. Anyone who knew or should have known the nature of the information and maliciously, or for monetary gain, disseminates this information to any other person commits, a third-degree felony, punishable by a term of imprisonment not to exceed five years (FL Legislature, 2023).

Notification of Test Results

The healthcare professional ordering an HIV test must ensure that “all reasonable efforts” are made to notify the person tested of the results, relating information to the test subject for both negative and positive test results. Providers are left to their own judgments on the manner to discharge this responsibility, much the same as they are in notifying their other patients of contagious diseases or serious illnesses.

Positive test results should be accompanied by information on availability of appropriate medical and support services, importance of partner notification, and prevention of transmission of HIV. Negative test results shall include, as appropriate, information on preventing the transmission of HIV (FL Legislature, 2023).

Counseling

Each Department of Health shall develop, by rule, a program consistent with the provisions for counseling and testing persons for the human immunodeficiency virus. The program must provide supplemental corroborative testing on all positive test results before the results of any positive test is provided to a patient.

The program must also provide the opportunity for face-to-face post-test counseling on the meaning of the test results; possible need for additional testing; social, medical, and economic consequences of a positive test result; and the need to eliminate behavior which might spread the disease to others (FL Legislature, 2023).