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Wis. Stat. § 252.15

Restrictions on use of an HIV test

Redline — January 1, 2007 → current.View current text →
Current — January 1, 2017
As of January 1, 2007
(1) Definitions. In this section:
(1) Definitions. In this section:
(ab) "Affected person" means an emergency medical technician; first responder; fire fighter; peace officer; correctional officer; person who is employed at a juvenile correctional facility, as defined in s. 938.02 (10p) , or a secured residential care center for children and youth, as defined in s. 938.02 (15g) ; state patrol officer; jailer, keeper of a jail, or person designated with custodial authority by the jailer or keeper; health care provider; employee of a health care provider; staff member of a state crime laboratory; social worker; or employee of a school district, cooperative educational service agency, charter school, private school, the Wisconsin Educational Services Program for the Deaf and Hard of Hearing, or the Wisconsin Center for the Blind and Visually Impaired.
(ac) “Authorized representative" means any of the following:
1. A health care agent, as defined under s. 155.01 (4) , acting in accordance with a power of attorney for health care that is in effect under s. 155.05 (2) .
2. A person named by the court under ch. 48 or 54 or ch. 880 , 2003 stats., having the duty and authority of guardianship.
3. A parent or legal custodian of a person who is under 14 years of age.
4. For a person who is unable to communicate due to a medical condition, the person's closest living relative or another individual with whom the person has a meaningful social and emotional relationship.
(ad) "Correctional officer" has the meaning given in s. 301.28 (1) .
(ad) “Correctional officer" has the meaning given in s. 301.28 (1) .
(af) “Emergency medical technician" has the meaning given in s. 256.01 (5) .
(af) “Emergency medical services practitioner" has the meaning given in s. 256.01 (5) .
(aj) "Fire fighter" has the meaning given in s. 102.475 (8) (b) .
(aj) “Fire fighter" has the meaning given in s. 102.475 (8) (b) .
(am) “Health care professional" means a physician who is licensed under ch. 448 or a registered nurse or licensed practical nurse who is licensed under ch. 441 .
(am) “Health care professional" means a physician or physician assistant who is licensed under ch. 448 or a registered nurse or licensed practical nurse who is licensed under ch. 441 .
(ar) "Health care provider" means any of the following:
(ar) “Health care provider" means any of the following:
1. A person or entity that is specified in s. 146.81 (1) , but does not include a massage therapist or bodyworker issued a certificate under ch. 460 .
1. A person or entity that is specified in s. 146.81 (1) (a) to (hm) and (i) to (p) .
2. A home health agency.
2. A home health agency.
3. An employee of the Mendota Mental Health Institute or the Winnebago Mental Health Institute.
3. An employee of the Mendota Mental Health Institute or the Winnebago Mental Health Institute.
(cm) "Home health agency" has the meaning given in s. 50.49 (1) (a) .
(cm) “Home health agency" has the meaning given in s. 50.49 (1) (a) .
(d) "Informed consent for testing or disclosure" means consent in writing on an informed consent for testing or disclosure form by a person to the administration of a test to him or her for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV or to the disclosure to another specified person of the results of a test administered to the person consenting.
(e) "Informed consent for testing or disclosure form" means a printed document on which a person may signify his or her informed consent for testing for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV or authorize the disclosure of any test results obtained.
(eg) "Relative" means a spouse, parent, grandparent, stepparent, brother, sister, first cousin, nephew or niece; or uncle or aunt within the 3rd degree of kinship as computed under s. 990.001 (16) . This relationship may be by blood, marriage or adoption.
(eg) “Relative" means a spouse, parent, grandparent, stepparent, brother, sister, first cousin, nephew or niece; or uncle or aunt within the 3rd degree of kinship as computed under s. 990.001 (16) . This relationship may be by blood, marriage or adoption.
(em) "Significantly exposed" means sustained a contact which carries a potential for a transmission of HIV, by one or more of the following:
(em) “Significant exposure" means contact that carries a potential for a transmission of HIV, by one or more of the following:
1. Transmission, into a body orifice or onto mucous membrane, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.
1. Transmission, into a body orifice or onto mucous membrane, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.
2. Exchange, during the accidental or intentional infliction of a penetrating wound, including a needle puncture, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.
2. Exchange, during the accidental or intentional infliction of a penetrating wound, including a needle puncture, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.
3. Exchange, into an eye, an open wound, an oozing lesion, or where a significant breakdown in the epidermal barrier has occurred, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.
3. Exchange, into an eye, an open wound, an oozing lesion, or where a significant breakdown in the epidermal barrier has occurred, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.
6. Other routes of exposure, defined as significant in rules promulgated by the department. The department in promulgating the rules shall consider all potential routes of transmission of HIV identified by the centers for disease control of the federal public health service.
6. Other routes of exposure, defined as significant in rules promulgated by the department. The department in promulgating the rules shall consider all potential routes of transmission of HIV identified by the centers for disease control of the federal public health service.
(er) "Social worker" means an individual who is certified or licensed as a social worker, advanced practice social worker, independent social worker, or clinical social worker under ch. 457 .
(er) “Social worker" means an individual who is certified or licensed as a social worker, advanced practice social worker, independent social worker, or clinical social worker under ch. 457 .
(fm) "Universal precautions" means measures that a health care provider, an employee of a health care provider or other individual takes in accordance with recommendations of the federal centers for disease control for the health care provider, employee or other individual for prevention of HIV transmission in health-care settings.
(fm) “Standard precautions" means measures that a health care provider, an employee of a health care provider or other individual takes in accordance with recommendations of the federal centers for disease control for the health care provider, employee or other individual for prevention of HIV transmission in health-care settings.
(2) Informed consent for testing or disclosure. (a) No health care provider, blood bank, blood center or plasma center may subject a person to a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV unless the subject of the test first provides informed consent for testing or disclosure as specified under par. (b) , except that consent to testing is not required for any of the following: 1. Except as provided in subd. 1g. , a health care provider who procures, processes, distributes or uses a human body part or human tissue that is the subject of an anatomical gift under 157.06 shall, without obtaining consent to the testing, test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV in order to assure medical acceptability of the gift for the purpose intended. The health care provider shall use as a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV a test or series of tests that the state epidemiologist finds medically significant and sufficiently reliable to detect the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV. If the validated test result of the donor from the test or series of tests performed is positive, the human body part or human tissue donated for use or proposed for donation may not be used. 1g. If a medical emergency, as determined by the attending physician of a potential donee and including a threat to the preservation of life of the potential donee, exists under which a human body part or human tissue that has been subjected to testing under subd. 1. is unavailable, the requirement of subd. 1. does not apply. 2. The department, a laboratory certified under 42 USC 263a or a health care provider, blood bank, blood center or plasma center may, for the purpose of research and without first obtaining written consent to the testing, subject any body fluids or tissues to a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV if the testing is performed in a manner by which the identity of the test subject is not known and may not be retrieved by the researcher. 3. The medical director of a center for the developmentally disabled, as defined in s. 51.01 (3) , or a mental health institute, as defined in s. 51.01 (12) , may, without obtaining consent to the testing, subject a resident or patient of the center or institute to a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV if he or she determines that the conduct of the resident or patient poses a significant risk of transmitting HIV to another resident or patient of the center or institute. 4. A health care provider may subject an individual to a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV, without obtaining consent to the testing from the individual, if all of the following apply: a. The individual has been adjudicated incompetent in this state, is under 14 years of age or is unable to give consent because he or she is unable to communicate due to a medical condition. b. The health care provider obtains consent for the testing from the individual's guardian, if the individual is adjudicated incompetent in this state; from the individual's parent or guardian, if the individual is under 14 years of age; or from the individual's closest living relative or another with whom the individual has a meaningful social and emotional relationship if the individual is not a minor nor adjudicated incompetent. 6. A health care professional acting under an order of the court under subd. 7. or s. 938.296 (4) or (5) or 968.38 (4) or (5) may, without first obtaining consent to the testing, subject an individual to a test or a series of tests to detect the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV. No sample used for laboratory test purposes under this subdivision may disclose the name of the test subject, and, notwithstanding sub. (4) (c) , the test results may not be made part of the individual's permanent medical record. 7. a. If all of the conditions under subd. 7. ai. to c. are met, an emergency medical technician; first responder; fire fighter; peace officer; correctional officer; person who is employed at a juvenile correctional facility, as defined in s. 938.02 (10p) , or a secured residential care center for children and youth, as defined in s. 938.02 (15g) ; state patrol officer; jailer, keeper of a jail, or person designated with custodial authority by the jailer or keeper, during the course of providing care or services to an individual; a peace officer, correctional officer, state patrol officer, jailer, or keeper of a jail, or person designated with custodial authority by the jailer or keeper, while searching or arresting an individual or while controlling or transferring an individual in custody; a health care provider or an employee of a health care provider, during the course of providing care or treatment to an individual or handling or processing specimens of body fluids or tissues of an individual; a staff member of a state crime laboratory, during the course of handling or processing specimens of body fluids or tissues of an individual; social worker; or an employee of a school district, cooperative educational service agency, charter school, private school, the Wisconsin Educational Services Program for the Deaf and Hard of Hearing, or the Wisconsin Center for the Blind and Visually Impaired, while performing employment duties involving an individual; who is significantly exposed to the individual may subject the individual's blood to a test or a series of tests for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV and may receive disclosure of the results. ai. The affected person uses universal precautions, if any, against significant exposure, and was using universal precautions at the time that he or she was significantly exposed, except in those emergency circumstances in which the time necessary for use of the universal precautions would endanger the life of the individual. ak. A physician or advanced practice nurse prescriber, based on information provided to the physician or advanced practice nurse prescriber, determines and certifies in writing that the affected person has been significantly exposed. The certification shall accompany the request for testing and disclosure. If the affected person who is significantly exposed is a physician or advanced practice nurse prescriber, he or she may not make this determination or certification. The information that is provided to a physician or advanced practice nurse prescriber to document the occurrence of a significant exposure and the physician's or advanced practice nurse prescriber's certification that an affected person has been significantly exposed, under this subd. 7. ak. , shall be provided on a report form that is developed by the department of commerce under s. 101.02 (19) (a) or on a report form that the department of commerce determines, under s. 101.02 (19) (b) , is substantially equivalent to the report form that is developed under s. 101.02 (19) (a) . am. The affected person submits to a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV, as soon as feasible or within a time period established by the department after consulting guidelines of the centers for disease control of the federal public health service, whichever is earlier. ap. Except as provided in subd. 7. av. to c. , the test is performed on blood that is drawn for a purpose other than testing for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV. ar. The individual, if capable of consenting, has been given an opportunity to be tested with his or her consent and has not consented. at. The individual has been informed that his or her blood may be tested for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV; that the test results may be disclosed to no one, including that individual, without his or her consent, except to the person who is certified to have been significantly exposed; that, if the person knows the identity of the individual, he or she may not disclose the identity to any other person except for the purpose of having the test or series of tests performed; and that a record may be kept of the test results only if the record does not reveal the individual's identity. av. If blood that is specified in subd. 7. ap. is unavailable, the person who is certified under subd. 7. ak. to have been significantly exposed may request the district attorney to apply to the circuit court for his or her county to order the individual to submit to a test or a series of tests for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV and to disclose the results to that person. The person who is certified under subd. 7. ak. to have been significantly exposed shall accompany the request with the certification under subd. 7. ak. b. Upon receipt of a request and certification under the requirements of this subdivision, a district attorney shall, as soon as possible so as to enable the court to provide timely notice, apply to the circuit court for his or her county to order the individual to submit to a test or a series of tests as specified in subd. 7. a. , administered by a health care professional, and to disclose the results of the test or tests as specified in subd. 7. c. c. The court shall set a time for a hearing on the matter under subd. 7. a. within 20 days after receipt of a request under subd. 7. b. The court shall give the district attorney and the individual from whom a test is sought notice of the hearing at least 72 hours prior to the hearing. The individual may have counsel at the hearing, and counsel may examine and cross-examine witnesses. If the court finds probable cause to believe that the individual has significantly exposed the affected person, the court shall, except as provided in subd. 7. d. , order the individual to submit to a test or a series of tests for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV. The court shall require the health care professional who performs the test or series of tests to refrain from disclosing the test results to the individual and to disclose the test results to the affected person and his or her health care professional. No sample used for laboratory test purposes under this subd. 7. c. may disclose the name of the test subject. d. The court is not required to order the individual to submit to a test under subd. 7. c. if the court finds substantial reason relating to the life or health of the individual not to do so and states the reason on the record. 7m. The test results of an individual under subd. 7. may be disclosed only to the individual, if he or she so consents, to anyone authorized by the individual and to the affected person who was certified to have been significantly exposed. A record may be retained of the test results only if the record does not reveal the individual's identity. If the affected person knows the identity of the individual whose blood was tested, he or she may not disclose the identity to any other person except for the purpose of having the test or series of tests performed. (am) 1. A health care provider who procures, processes, distributes or uses human sperm that is the subject of an anatomical gift under 157.06 shall, prior to the distribution or use and with informed consent under the requirements of par. (b) , test the proposed donor for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV in order to assure medical acceptability of the gift for the purpose intended. The health care provider shall use as a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV a test or series of tests that the state epidemiologist finds medically significant and sufficiently reliable under s. 252.13 (1r) to detect the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV. The health care provider shall test the donor initially and, if the initial test result is negative, shall perform a 2nd test on a date that is not less than 180 days from the date of the procurement of the sperm. No person may use the donated sperm until the health care provider has obtained the results of the 2nd test. If any validated test result of the donor for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV is positive, the sperm donated for use may not be used and, if donated, shall be destroyed. 2. A health care provider who procures, processes, distributes or uses human ova that are the subject of an anatomical gift under s. 157.06 shall, prior to the distribution or use and with informed consent under the requirements of par. (b) , test the proposed donor for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV in order to assure medical acceptability of the gift for the purpose intended. (b) The health care provider, blood bank, blood center or plasma center that subjects a person to a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV under pars. (a) and (am) shall, in instances under those paragraphs in which consent is required, provide the potential test subject with an informed consent form for testing or disclosure that shall contain the following information and on the form shall obtain the potential test subject's signature or may, if the potential test subject has executed a power of attorney for health care instrument under ch. 155 and has been found to be incapacitated under s. 155.05 (2) , instead obtain the signature of the health care agent: 1. The name of the potential test subject who is giving consent and whose test results may be disclosed and, if the potential test subject has executed a power of attorney for health care instrument under ch. 155 and has been found to be incapacitated under s. 155.05 (2) , the name of the health care agent. 2. A statement of explanation to the potential test subject that the test results may be disclosed as specified under sub. (5) (a) and either a listing that duplicates the persons or circumstances specified under sub. (5) (a) 2. to 19. or a statement that the listing is available upon request. 3. Spaces specifically designated for the following purposes: a. The signature of the potential test subject or, if the potential test subject has executed a power of attorney for health care instrument under ch. 155 and has been found to be incapacitated under s. 155.05 (2) , of the health care agent, providing informed consent for the testing and the date on which the consent is signed. b. The name of a person to whom the potential test subject or, if the potential test subject has executed a power of attorney for health care instrument under ch. 155 and has been found to be incapacitated under s. 155.05 (2) , the health care agent, authorizes that disclosure of test results be made, if any, the date on which the consent to disclosure is signed, and the time period during which the consent to disclosure is effective. (bm) The health care provider that subjects a person to a test for the presence of HIV, antigen or nonantigenic products of HIV, or an antibody to HIV under par. (a) 3. shall provide the test subject and the test subject's guardian, if the test subject is an individual found incompetent in this state, with all of the following information: 1. A statement of explanation concerning the test that was performed, the date of performance of the test and the test results. 2. A statement of explanation that the test results may be disclosed as specified under sub. (5) (a) and either a listing that duplicates the persons or circumstances specified under sub. (5) (a) 2. to 18. or a statement that the listing is available upon request.
(2m) Consent for HIV testing. (a) Except as provided in par. (b) , and subject to par. (c) , a health care provider, blood bank, blood center, or plasma center may not subject a person to an HIV test unless all of the following conditions are satisfied: 1. The health care provider, blood bank, blood center, or plasma center notifies the person or the person's authorized representative that the person will be subjected to an HIV test unless the person or the person's authorized representative declines the test. 2. The health care provider, blood bank, blood center, or plasma center offers the person or the person's authorized representative a brief oral or written explanation or description of HIV infection; HIV test results; requirements under subs. (7) (b) and (7m) for reporting HIV test results; treatment options for a person who has a positive HIV test result; and services provided by AIDS service organizations, as defined in s. 252.12 (1) (b) , and other community-based organizations for persons who have a positive HIV test result. 3. If a health care provider offers to perform an HIV test, the health care provider notifies the person or the person's authorized representative that the person or the person's authorized representative may decline the HIV test and that, if the person or the person's authorized representative declines the HIV test, the health care provider may not use the fact that the person declined an HIV test as a basis for denying services or treatment, other than an HIV test, to the person. 4. The health care provider, blood bank, blood center, or plasma center provides the person or the person's authorized representative an opportunity to ask questions and to decline the HIV test. 5. After complying with applicable conditions under subds. 1. to 4. , the health care provider, blood bank, blood center, or plasma center verifies that the person or the person's authorized representative understands that an HIV test will be performed on the person and that the decision of the person or the person's authorized representative regarding whether to have an HIV test performed is not coerced or involuntary. (b) Paragraph (a) does not apply to any of the following: 1. HIV testing of any body fluid or tissue that is performed by the department, a laboratory certified under 42 USC 263a , or a health care provider, blood bank, blood center, or plasma center for the purpose of research, if the testing is performed in a manner by which the identity of the test subject is not known and may not be retrieved by the researcher. 2. HIV testing of a resident or patient of a center for the developmentally disabled, as defined in s. 51.01 (3) , or a mental health institute, as defined in s. 51.01 (12) , if the medical director of the center or institute determines that the conduct of the resident or patient poses a significant risk of transmitting HIV to another resident or patient of the center or institute and if the medical director provides the resident or patient, or the resident's or patient's guardian, an explanation of the HIV test result. 3. HIV testing by a health care professional acting under an order of the court under sub. (5j) or s. 938.296 (4) or (5) or 968.38 (4) or (5) . No sample used for laboratory test purposes under this subdivision may disclose the name of the HIV test subject, and the HIV test results may not be made part of the individual's permanent medical record. 4. HIV testing in cases of significant exposure, as provided under sub. (5g) or (5j) . 5. HIV testing of a donor of a human body part or human tissue that is required under s. 252.133 . (c) If the subject of an HIV test is a minor who is 14 years of age or older, a health care provider, blood bank, blood center, or plasma center shall provide the notifications and offer the information under par. (a) 1. to 4. to the minor or his or her authorized representative, and only the minor or his or authorized representative may consent to or decline an HIV test under par. (a) . (2r) Prohibition against conditioning HIV testing on disclosure. A health care provider may not require a person to authorize disclosure of HIV test results as a condition of administering an HIV test to the person. (3m) Confidentiality and disclosure of HIV test results. (a) The subject of an HIV test or the subject's authorized representative may disclose the results of the subject's test to anyone. (b) Except as provided under par. (d) or (e) , a person who is neither the subject of the HIV test nor the subject's authorized representative may not disclose the subject's HIV test results unless the subject of the HIV test or his or her authorized representative has signed authorization for the disclosure that contains all of the following: 1. The name of the subject of the HIV test. 2. Specification of the information that may be disclosed. 3. The name of the person authorized to make the disclosure. 4. The name of the person to whom the disclosure is authorized. 5. The signature of the subject of the HIV test or the signature of the subject's authorized representative. 6. The date the authorization is signed as provided under subd. 5. 7. The time period during which the authorization for disclosure is effective. (c) If the subject of an HIV test is a minor who is 14 years of age or older, only the minor or his or her authorized representative may exercise the test subject's authority to disclose HIV test results under par. (a) or to authorize disclosure of HIV test results under par. (b) . (d) Except as provided under par. (f) , a person who is neither the subject of an HIV test nor the subject's authorized representative may without written authorization from the test subject or authorized representative under par. (b) disclose the subject's HIV test results to the following persons under the following circumstances: 1. To the subject of the HIV test and the subject's authorized representative. 2. To a health care provider who provides care to the subject of the HIV test, including those instances in which a health care provider provides emergency care to the subject. 3. To an agent or employee of a health care provider under subd. 2. who prepares or stores patient health care records, as defined in s. 146.81 (4) , for the purposes of preparation or storage of those records; provides patient care; or handles or processes specimens of body fluids or tissues. 4. To a blood bank, blood center, or plasma center that subjected the test subject to an HIV test for any of the following purposes: a. Determining the medical acceptability of blood or plasma secured from the subject of the HIV test. b. Notifying the subject of the HIV test of the test results. c. Investigating HIV infections in blood or plasma. 5. To a health care provider who procures, processes, distributes or uses a human body part that is the subject of an anatomical gift under s. 157.06 , for the purpose of assuring medical acceptability of the gift for the purpose intended. 6. To the state epidemiologist or his or her designee, or to a local health officer or his or her designees, for the purpose of providing epidemiologic surveillance or investigation or control of communicable disease.
(3) Written consent to disclosure. A person who receives a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV under sub. (2) (b) or, if the person has executed a power of attorney for health care instrument under ch. 155 and has been found to be incapacitated under s. 155.05 (2) , the health care agent may authorize in writing a health care provider, blood bank, blood center or plasma center to disclose the person's test results to anyone at any time subsequent to providing informed consent for disclosure under sub. (2) (b) and a record of this consent shall be maintained by the health care provider, blood bank, blood center or plasma center so authorized.
(4) Record maintenance. A health care provider, blood bank, blood center or plasma center that obtains from a person a specimen of body fluids or tissues for the purpose of testing for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV shall:
(a) Obtain from the subject informed consent for testing or disclosure, as provided under sub. (2) .

Official source: Wisconsin State Legislature. Reproduced from public-domain Wisconsin statutes; confirm against the official source for the current text. Not legal advice.