RLR:nwn:rs
2009 - 2010 LEGISLATURE
January 20, 2010 - Introduced by Representatives Shilling, Richards, Benedict,
Berceau, Hebl, Pasch, Sinicki, Turner and Zepnick, cosponsored by Senators
Robson and Taylor. Referred to Committee on Health and Healthcare
Reform.
AB659,2,22
1An Act to repeal 49.686 (1) (g), 252.15 (1) (ab), 252.15 (1) (d), 252.15 (1) (e),
2252.15 (2) (title), 252.15 (2) (a) (intro.), 252.15 (2) (a) 4., 252.15 (2) (am), 252.15
3(2) (b), 252.15 (2) (bm), 252.15 (3), 252.15 (4) (a), 252.15 (5) (a) 11., 252.15 (5) (a)
415. and 252.15 (5) (a) 18.;
to renumber 252.15 (5) (a) 3., 252.15 (5) (a) 5. and
5252.15 (5) (a) 8. and 9.;
to renumber and amend 252.15 (2) (a) 1., 252.15 (2)
6(a) 1g., 252.15 (2) (a) 2., 252.15 (2) (a) 3., 252.15 (2) (a) 6., 252.15 (2) (a) 7. a.,
7252.15 (2) (a) 7. ai., 252.15 (2) (a) 7. ak., 252.15 (2) (a) 7. am., 252.15 (2) (a) 7.
8ap., 252.15 (2) (a) 7. ar., 252.15 (2) (a) 7. at., 252.15 (2) (a) 7. av., 252.15 (2) (a)
97. b., 252.15 (2) (a) 7. c., 252.15 (2) (a) 7. d., 252.15 (2) (a) 7m., 252.15 (5) (title),
10252.15 (5) (a) (intro.), 252.15 (5) (a) 1., 252.15 (5) (a) 2., 252.15 (5) (a) 4., 252.15
11(5) (a) 6., 252.15 (5) (a) 7., 252.15 (5) (a) 10., 252.15 (5) (a) 12., 252.15 (5) (a) 13.,
12252.15 (5) (a) 14., 252.15 (5) (a) 17., 252.15 (5) (a) 19., 252.15 (5) (a) 20., 252.15
13(5) (b), 252.15 (5m) (intro.), 252.15 (5m) (a), 252.15 (5m) (b) and 252.15 (5m) (c);
14to amend 48.371 (1) (a), 59.69 (15) (im), 60.63 (10m), 62.23 (7) (i) 9m., 101.02
1(19) (a), 103.15 (title), 103.15 (2) (a), 103.15 (2) (b), 103.15 (3), 118.125 (2m) (b),
2146.81 (4), 149.12 (1) (intro.), 252.01 (8), 252.11 (5m), 252.11 (7), 252.12 (2) (a)
33. d., 252.12 (2) (a) 5., 252.12 (2) (a) 7., 252.13 (title), 252.13 (1m), 252.13 (1r)
4(intro.), 252.13 (3), 252.13 (4), 252.13 (5), 252.14 (2) (intro.), 252.14 (3), 252.14
5(4), 252.15 (title), 252.15 (1) (am), 252.15 (1) (em) (intro.), 252.15 (1) (fm), 252.15
6(4) (intro.), 252.15 (4) (c), 252.15 (5m) (title), 252.15 (6), 252.15 (7) (title), 252.15
7(7) (a), 252.15 (7) (b) (intro.), 252.15 (7) (b) 4., 252.15 (7) (b) 5., 252.15 (7) (c) 1.,
8252.15 (7) (c) 2., 252.15 (7m), 252.15 (8), 252.15 (9), 256.15 (12) (a), 440.20 (4),
9631.90 (1), 631.90 (2) (a), 631.90 (2) (b), 631.90 (2) (c), 631.90 (3) (a), 631.90 (3)
10(b), 901.05 (2) (intro.), 938.296 (1) (d), 938.296 (2) (intro.), 938.296 (2) (b),
11938.296 (4) (intro.), 938.296 (5) (intro.), 938.346 (1) (e), 938.371 (1) (a), 968.38
12(1) (d), 968.38 (2) (intro.), 968.38 (2) (a), 968.38 (4) (intro.), 968.38 (5) (intro.),
13973.017 (4) (b) 1. and 973.017 (4) (b) 2.;
to repeal and recreate 252.15 (4) (b);
14and
to create 103.15 (1) (bm), 252.01 (2m), 252.12 (1) (b), 252.12 (4), 252.133
15(title), 252.14 (2m), 252.15 (1) (ac), 252.15 (2m) (title), 252.15 (2m) (a), 252.15
16(2m) (b) (intro.), 252.15 (2m) (b) 4., 252.15 (2m) (b) 5., 252.15 (2m) (c), 252.15
17(2r), 252.15 (3m) (b) 1. to 7., 252.15 (3m) (c), 252.15 (3m) (d) (intro.), 252.15 (3m)
18(e), 252.15 (3m) (f) 1., 252.15 (3m) (g), 252.15 (4) (bm), 252.15 (5g) (intro.) and
19(a), 252.15 (5g) (a) 6., 252.15 (5g) (g) 3., 252.15 (5j) (title), 252.15 (5m) (d) 1.
20(intro.), 252.15 (5m) (d) 2. and 3., 252.15 (5m) (e), 252.15 (7) (b) 5m., 252.15 (7r),
21938.296 (1) (bm), 968.38 (1) (bc) and 973.017 (4) (a) 1m. of the statutes;
relating
22to: HIV testing, disclosure of HIV test results, and providing penalties.
Analysis by the Legislative Reference Bureau
Under current law, a person generally may not be subjected to a test for human
immunodeficiency virus (HIV) unless he or she consents to the test. The results of
an HIV test are generally confidential and may not be disclosed unless the test
subject authorizes disclosure. Current law specifies certain circumstances under
which another person may provide consent for HIV testing of an individual and
disclosure of HIV test results. For example, if a person has designated a health care
agent and has been found to be incapacitated, the person's health care agent may
provide consent for HIV testing and disclosure of the test results. In addition, a
parent may consent to HIV testing and disclosure of test results on behalf of a minor
who is less than 14 years of age.
Current law provides several exceptions to the consent requirement for HIV
testing. The exception for cases of so-called "significant exposure" provides that if
a person working in certain occupations such as health care, corrections, or
education, is exposed to the body fluid of an another individual under circumstances
that may allow for transmission of HIV, and a health care provider certifies that a
significant exposure occurred, the person may have the individual tested for HIV
without the individual's consent. If the individual is tested, the person who
requested the test may obtain the results of the test. The individual may be informed
of his or her own test results only if he or she consents to being informed.
Current law provides a number of additional exceptions to confidentiality of
HIV test results. For example, under certain circumstances HIV test results may be
disclosed without the test subject's consent to a health care provider, a jailer or
corrections employee, a foster parent, and a victim of sexual assault, among others.
Current law specifies that if consent is required for HIV testing, it must be
provided in writing on a form that includes an explanation regarding permitted
disclosure of HIV test results. Authorization for disclosure of test results must also
be provided in writing.
Current law also provides that a health care provider, blood bank, or blood or
plasma center that performs an HIV test, must report positive HIV test results to the
state epidemiologist. Current law allows a health care provider who has a record of
an individual's positive HIV test results to report to the state epidemiologist the
name of any person who had significant exposure to the test subject.
Current law provides a criminal penalty for intentionally violating prohibitions
against disclosing HIV test results without the test subject's consent. Current law
also allows civil damages for violating the prohibitions against disclosure and for
violating consent requirements for HIV testing.
This bill changes the consent provisions for HIV testing. Under the bill, the
following conditions must be satisfied before a health care provider, blood bank,
blood center, or plasma center (test administrator) may perform an HIV test on a
person: 1) the test administrator must notify the person that the person may decline
to have the test performed and that the test will be performed unless the person
declines; 2) the test administrator must offer the person certain information about
HIV, HIV test results, reporting of test results, treatment options for HIV, and AIDS
service organizations and the services they provide; 3) the test administrator must
provide the person an opportunity to ask questions and to decline the test; 4) and the
test administrator must verify that the person understands that a test will be
performed and that the person's decision regarding testing is not coerced or
involuntary. In addition, the bill provides that a health care provider may not deny
treatment or services to a person who declines to have an HIV test performed, and
requires a health care provider that administers HIV tests to notify potential HIV
test subjects of this prohibition against denying treatment or services. The bill
further provides that 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. The bill eliminates the requirement that consent for an HIV test must be in
writing. The bill requires the Department of Health Services to provide test
administrators materials that include the information and notices that test
administrators must provide or offer to potential test subjects.
Other changes in the bill include the following:
1. The bill specifies elements that must be included in an authorization to
disclose HIV test results, including the name and signature of the person who
authorizes the disclosure, specification of what information may be disclosed, the
name of the person to whom the information may be disclosed, and the period in
which disclosure is permitted.
2. The bill eliminates the condition that an individual who is tested for HIV in
a case of significant exposure consent to being informed of his or her or test results
before he or she may be notified of the test results.
3. The bill provides that a good samaritan who renders aid to an accident victim
and has a significant exposure to body fluid of the victim may cause the victim to be
tested for HIV without the victim's consent.
4. The bill specifies that if a minor is at least 14 years of age, the minor, and
not his or her parent, has authority to consent to or decline an HIV test and authorize
disclosure of his or her HIV test results.
5. The bill provides that a physician assistant has the same authority as a
physician and certain nurses to certify that a significant exposure has occurred for
purposes of requiring HIV testing without consent, to disclose to the state
epidemiologist the name of a person who may have had a significant exposure to a
person who has tested positive for HIV, to administer certain court-ordered HIV
tests, and to receive certain HIV test results.
6. The bill provides that when a health care provider, blood bank, or blood or
plasma center reports a positive HIV test result to the state epidemiologist, the
report must include the mode of HIV transmission.
7. The bill increases the criminal fine and civil damages amounts for violating
prohibitions against disclosing HIV test results without consent and increases the
civil damages amounts for violating consent requirements for HIV testing.
8. The bill requires the Department of Heath Services to designate AIDS
service organizations, which are defined in the bill as nonprofit corporations or
public agencies that provide, or arrange for the provision of, comprehensive services
to prevent HIV infection and comprehensive health and social services for persons
who have an HIV infection.
9. The bill eliminates a state law requirement for HIV testing of sperm and ova
that are donated as anatomical gifts. Federal law requires HIV testing of all donated
sperm and ova.
10. The bill makes numerous changes that modernize and simplify references
to HIV tests and reorganizes provisions relating to HIV testing and disclosure of HIV
test results.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB659, s. 1
1Section
1. 48.371 (1) (a) of the statutes is amended to read:
AB659,5,92
48.371
(1) (a) Results of
a an HIV test
or a series of tests, as defined in s. 252.01
3(2m), of the child
to determine the presence of HIV, as defined in s. 968.38 (1) (b),
4antigen or nonantigenic products of HIV, or an antibody to HIV, as provided under
5s. 252.15
(5) (a) 19. (3m) (d) 15., including results included in a court report or
6permanency plan. At the time that the
HIV test results are provided, the agency
7shall notify the foster parent, treatment foster parent, relative, or operator of the
8group home or residential care center for children and youth of the confidentiality
9requirements under s. 252.15 (6).
AB659, s. 2
10Section
2. 49.686 (1) (g) of the statutes is repealed.
AB659, s. 3
11Section
3. 59.69 (15) (im) of the statutes is amended to read:
AB659,5,1812
59.69
(15) (im) The fact that an individual with acquired immunodeficiency
13syndrome or a positive
HIV test
for the presence of HIV, as defined in s. 252.01
(1m),
14antigen or nonantigenic products of HIV or an antibody to HIV
(2m), resides in a
15community living arrangement with a capacity for 8 or fewer persons may not be
16used under par. (i) to assert or prove that the existence of the community living
17arrangement in the municipality poses a threat to the health, safety or welfare of the
18residents of the municipality.
AB659, s. 4
19Section
4. 60.63 (10m) of the statutes is amended to read:
AB659,6,7
160.63
(10m) The fact that an individual with acquired immunodeficiency
2syndrome or a positive
HIV test
for the presence of HIV, as defined in s. 252.01
(1m),
3antigen or nonantigenic products of HIV or an antibody to HIV
(2m), resides in a
4community living arrangement with a capacity for 8 or fewer persons may not be
5used under sub. (10) to assert or prove that the existence of the community living
6arrangement in the town poses a threat to the health, safety or welfare of the
7residents of the town.
AB659, s. 5
8Section
5. 62.23 (7) (i) 9m. of the statutes is amended to read:
AB659,6,159
62.23
(7) (i) 9m. The fact that an individual with acquired immunodeficiency
10syndrome or a positive
HIV test
for the presence of HIV, as defined in s. 252.01
(1m),
11antigen or nonantigenic products of HIV or an antibody to HIV
(2m), resides in a
12community living arrangement with a capacity for 8 or fewer persons may not be
13used under subd. 9. to assert or prove that the existence of the community living
14arrangement in the city poses a threat to the health, safety or welfare of the residents
15of the city.
AB659, s. 6
16Section
6. 101.02 (19) (a) of the statutes is amended to read:
AB659,7,217
101.02
(19) (a) The department shall, after consulting with the department of
18health services, develop a report form to document
significant exposure to contact
19with blood or body fluids
that constitutes a significant exposure, for use under s.
20252.15
(2) (a) 7. ak (5g) (c). The form shall contain the following language for use by
21a person who may have
been significantly exposed
had a significant exposure:
22"REMEMBER — WHEN YOU ARE INFORMED OF AN HIV TEST RESULT BY
23USING THIS FORM, IT IS A VIOLATION OF THE LAW FOR YOU TO REVEAL
24TO ANYONE ELSE THE IDENTITY OF THE PERSON WHO IS THE SUBJECT
1OF THAT TEST RESULT. (PENALTY: POSSIBLE JAIL AND UP TO
$10,000 2$50,000 FINE)".
AB659, s. 7
3Section
7. 103.15 (title) of the statutes is amended to read:
AB659,7,4
4103.15 (title)
Restrictions on use of a an HIV test for HIV.
AB659, s. 8
5Section
8. 103.15 (1) (bm) of the statutes is created to read:
AB659,7,66
103.15
(1) (bm) "HIV test" has the meaning given in s. 252.01 (2m).
AB659, s. 9
7Section
9. 103.15 (2) (a) of the statutes is amended to read:
AB659,7,108
103.15
(2) (a) Solicit or require
an HIV test as a condition of employment of any
9employee or prospective employee
a test for the presence of HIV, antigen or
10nonantigenic products of HIV or an antibody to HIV.
AB659, s. 10
11Section
10. 103.15 (2) (b) of the statutes is amended to read:
AB659,7,1512
103.15
(2) (b) Affect the terms, conditions or privileges of employment or
13terminate the employment of any employee who obtains
a an HIV test
for the
14presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV, as
15defined in s. 252.01 (2m).
AB659, s. 11
16Section
11. 103.15 (3) of the statutes is amended to read:
AB659,7,2117
103.15
(3) Any agreement by an employer or agent of the employer and an
18employee or prospective employee offering employment or any pay or benefit to an
19employee or prospective employee in return for taking
a an HIV test
for the presence
20of HIV, antigen or nonantigenic products of HIV or an antibody to HIV is prohibited,
21except as provided under sub. (2) (intro.).
AB659, s. 12
22Section
12. 118.125 (2m) (b) of the statutes is amended to read:
AB659,8,223
118.125
(2m) (b) Any pupil record that concerns the results of
a an HIV test
24for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to
1HIV, as defined in s. 252.01 (2m), shall be treated as provided under s. 252.15.
In this
2subsection, "HIV" has the meaning given in s. 252.01 (1m).
AB659,8,185
146.81
(4) "Patient health care records" means all records related to the health
6of a patient prepared by or under the supervision of a health care provider; and all
7records made by an ambulance service provider, as defined in s. 256.01 (3), an
8emergency medical technician, as defined in s. 256.01 (5), or a first responder, as
9defined in s. 256.01 (9), in administering emergency care procedures to and handling
10and transporting sick, disabled, or injured individuals. "Patient health care records"
11includes billing statements and invoices for treatment or services provided by a
12health care provider and includes health summary forms prepared under s. 302.388
13(2). "Patient health care records" does not include those records subject to s. 51.30,
14reports collected under s. 69.186, records of tests administered under s. 252.15
(2)
15(a) 7. (5g) or (5j), 343.305, 938.296 (4) or (5) or 968.38 (4) or (5), records related to sales
16of pseudoephedrine products, as defined in s. 961.01 (20c), that are maintained by
17pharmacies under s. 961.235, fetal monitor tracings, as defined under s. 146.817 (1),
18or a pupil's physical health records maintained by a school under s. 118.125.
AB659, s. 14
19Section
14. 149.12 (1) (intro.) of the statutes is amended to read:
AB659,9,220
149.12
(1) (intro.) Except as provided in subs. (1m), (2), and (3), the authority
21shall certify as eligible a person who is covered by Medicare because he or she is
22disabled under
42 USC 423, a person who submits evidence that he or she has
tested
23positive for the presence of HIV, antigen or nonantigenic products of HIV, or an
24antibody to HIV, a positive, validated HIV test result, as defined in s. 252.01 (8); a
25person who is an eligible individual
,; and any person who receives and submits any
1of the following based wholly or partially on medical underwriting considerations
2within 9 months prior to making application for coverage by the plan:
AB659, s. 15
3Section
15. 252.01 (2m) of the statutes is created to read:
AB659,9,54
252.01
(2m) "HIV test" means a test for the presence of HIV or an antibody to
5HIV.
AB659, s. 16
6Section
16. 252.01 (8) of the statutes is amended to read:
AB659,9,107
252.01
(8) "Validated
HIV test result" means a result of
a an HIV test
for the
8presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV that
9meets the validation requirements determined to be necessary by the state
10epidemiologist.
AB659, s. 17
11Section
17. 252.11 (5m) of the statutes is amended to read:
AB659,9,1712
252.11
(5m) A health care professional, as defined in s. 968.38 (1) (a), acting
13under an order of a court under s. 938.296 (4)
or (5) or 968.38 (4)
or (5) may, without
14first obtaining informed consent to the testing, subject an individual to a test or a
15series of tests to ascertain whether that individual is infected with a sexually
16transmitted disease. No sample used for performance of a test under this subsection
17may disclose the name of the test subject.
AB659, s. 18
18Section
18. 252.11 (7) of the statutes is amended to read:
AB659,9,2519
252.11
(7) Reports, examinations and inspections and all records concerning
20sexually transmitted diseases are confidential and not open to public inspection, and
21may not be divulged except as may be necessary for the preservation of the public
22health, in the course of commitment proceedings under sub. (5), or as provided under
23s. 938.296 (4)
or (5) or 968.38 (4)
or (5). If a physician or advanced practice nurse
24prescriber has reported a case of sexually transmitted disease to the department
25under sub. (4), information regarding the presence of the disease and treatment is
1not privileged when the patient, physician, or advanced practice nurse prescriber is
2called upon to testify to the facts before any court of record.
AB659, s. 19
3Section
19. 252.12 (1) (b) of the statutes is created to read:
AB659,10,84
252.12
(1) (b) "AIDS service organizations" means nonprofit corporations or
5public agencies that provide, or arrange for the provision of, comprehensive services
6to prevent HIV infection and comprehensive health and social services for persons
7who have HIV infection, and that are designated as such by the department under
8sub. (4).
AB659, s. 20
9Section
20. 252.12 (2) (a) 3. d. of the statutes is amended to read:
AB659,10,1110
252.12
(2) (a) 3. d. Locations for procuring additional information or obtaining
11HIV testing services.
AB659, s. 21
12Section
21. 252.12 (2) (a) 5. of the statutes is amended to read:
AB659,10,1913
252.12
(2) (a) 5. The department shall perform
HIV tests
for the presence of
14HIV and, if appropriate,
tests for the presence of related infections and shall conduct
15behavioral surveys among population groups determined by the department to be
16highly at risk of becoming infected with or transmitting HIV and related infections.
17Information obtained shall be used to develop targeted HIV infection and related
18infection prevention efforts for these groups and to evaluate the state's prevention
19strategies.
AB659, s. 22
20Section
22. 252.12 (2) (a) 7. of the statutes is amended to read:
AB659,10,2521
252.12
(2) (a) 7. The department shall distribute funding in each fiscal year to
22contract with organizations to provide, at alternate testing sites, anonymous or
23confidential counseling services for HIV
and, laboratory
HIV testing services
for the
24presence of HIV, and, if appropriate,
laboratory testing services for the presence of 25related viruses.
AB659, s. 23
1Section
23. 252.12 (4) of the statutes is created to read:
AB659,11,42
252.12
(4) Designation of AIDS service organizations. The department shall
3designate AIDS service organizations and specify the geographical area of the state
4in which they are designated to provide services.
AB659, s. 24
5Section
24. 252.13 (title) of the statutes is amended to read:
AB659,11,6
6252.13 (title)
Blood HIV tests for HIV.
AB659, s. 25
7Section
25. 252.13 (1m) of the statutes is amended to read:
AB659,11,218
252.13
(1m) Except as provided under sub. (3), any blood bank, blood center
9or plasma center in this state that purchases or receives whole blood, blood plasma,
10a blood product or a blood derivative shall, prior to its distribution or use and
in
11accordance with
informed consent under the
requirements of conditions under s.
12252.15
(2) (b) (2m) (a), subject that blood, plasma, product or derivative to
a
an HIV 13test
or series of tests that the state epidemiologist finds medically significant and
14sufficiently reliable under sub. (1r) (a) to detect the presence of HIV, antigen or
15nonantigenic products of HIV or an antibody to HIV. This subsection does not apply
16to a blood bank that purchases or receives whole blood, blood plasma, a blood product
17or a blood derivative from a blood bank, blood center or plasma center in this state
18if the whole blood, blood plasma, blood product or blood derivative has previously
19been subjected to
a an HIV test
or series of tests that the state epidemiologist finds
20medically significant and sufficiently reliable under sub. (1r) (a) to detect the
21presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.
AB659, s. 26
22Section
26. 252.13 (1r) (intro.) of the statutes is amended to read:
AB659,12,223
252.13
(1r) (intro.) For the purposes of this section, the state epidemiologist
24shall make separate findings of medical significance and sufficient reliability for
a
25an HIV test or a series of
HIV tests
to detect the presence of HIV, antigen or
1nonantigenic products of HIV or an antibody to HIV for each of the following
2purposes:
AB659, s. 27
3Section
27. 252.13 (3) of the statutes is amended to read:
AB659,12,74
252.13
(3) If a medical emergency, including a threat to the preservation of life
5of a potential donee, exists under which whole blood, blood plasma, a blood product
, 6or a blood derivative that has been subjected to
HIV testing under sub. (1m) is
7unavailable, the requirement of sub. (1m) shall not apply.
AB659, s. 28
8Section
28. 252.13 (4) of the statutes is amended to read:
AB659,12,119
252.13
(4) Subsections (1m) and (2) do not apply to the extent that federal law
10or regulations require that a blood bank, blood center
, or plasma center
administer
11an HIV test
to whole blood, blood plasma, a blood product
, or a blood derivative.