252.15(3m)(d)15.
15. If the subject of the HIV test is a child who has been placed in a foster home, treatment foster home, group home, residential care center for children and youth, or juvenile correctional facility, as defined in
s. 938.02 (10p), including a placement under
s. 48.205,
48.21,
938.205, or
938.21, or for whom placement in a foster home, treatment foster home, group home, residential care center for children and youth, or juvenile correctional facility is recommended under
s. 48.33 (4),
48.425 (1) (g),
48.837 (4) (c), or
938.33 (3) or
(4), to an agency directed by a court to prepare a court report under
s. 48.33 (1),
48.424 (4) (b),
48.425 (3),
48.831 (2),
48.837 (4) (c), or
938.33 (1), to an agency responsible for preparing a court report under
s. 48.365 (2g),
48.425 (1),
48.831 (2),
48.837 (4) (c), or
938.365 (2g), to an agency responsible for preparing a permanency plan under
s. 48.355 (2e),
48.38,
48.43 (1) (c) or
(5) (c),
48.63 (4) or
(5) (c),
48.831 (4) (e),
938.355 (2e), or
938.38 regarding the child, or to an agency that placed the child or arranged for the placement of the child in any of those placements and, by any of those agencies, to any other of those agencies and, by the agency that placed the child or arranged for the placement of the child in any of those placements, to the child's foster parent or treatment foster parent or the operator of the group home, residential care center for children and youth, or juvenile correctional facility in which the child is placed, as provided in
s. 48.371 or
938.371.
252.15 Note
NOTE: Subd. 15. is shown below as affected by
2009 Wis. Act 28 and
2009 Wis. Act 209 and as merged by the legislative reference bureau under s. 13.92 (2) (i) effective the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9):
Effective date text
15. If the subject of the HIV test is a child who has been placed in a foster home, group home, residential care center for children and youth, or juvenile correctional facility, as defined in s. 938.02 (10p), including a placement under s. 48.205, 48.21, 938.205, or 938.21, or for whom placement in a foster home, group home, residential care center for children and youth, or juvenile correctional facility is recommended under s. 48.33 (4), 48.425 (1) (g), 48.837 (4) (c), or 938.33 (3) or (4), to an agency directed by a court to prepare a court report under s. 48.33 (1), 48.424 (4) (b), 48.425 (3), 48.831 (2), 48.837 (4) (c), or 938.33 (1), to an agency responsible for preparing a court report under s. 48.365 (2g), 48.425 (1), 48.831 (2), 48.837 (4) (c), or 938.365 (2g), to an agency responsible for preparing a permanency plan under s. 48.355 (2e), 48.38, 48.43 (1) (c) or (5) (c), 48.63 (4) or (5) (c), 48.831 (4) (e), 938.355 (2e), or 938.38 regarding the child, or to an agency that placed the child or arranged for the placement of the child in any of those placements and, by any of those agencies, to any other of those agencies and, by the agency that placed the child or arranged for the placement of the child in any of those placements, to the child's foster parent or the operator of the group home, residential care center for children and youth, or juvenile correctional facility in which the child is placed, as provided in s. 48.371 or 938.371.
252.15(3m)(d)16.
16. If the subject of the HIV test is a prisoner, to the prisoner's health care provider, the medical staff of a prison or jail in which a prisoner is confined, the receiving institution intake staff at a prison or jail to which a prisoner is being transferred or a person designated by a jailer to maintain prisoner medical records, if the disclosure is made with respect to the prisoner's patient health care records under
s. 302.388, to the medical staff of a jail to whom the HIV results are disclosed under
s. 302.388 (2) (c) or
(d), to the medical staff of a jail to which a prisoner is being transferred, if the results are provided to the medical staff by the department of corrections as part of the prisoner's medical file, to a health care provider to whom the results are disclosed under
s. 302.388 (2) (c) or
(f) or the department of corrections if the disclosure is made with respect to a prisoner's patient health care records under
s. 302.388 (4).
252.15(3m)(e)
(e) The health care professional who performs an HIV test under
sub. (5g) or
(5j) on behalf of a person who has contact with body fluids of the test subject that constitutes a significant exposure shall disclose the HIV test results to the person and the person's physician, physician assistant, or nurse.
252.15(3m)(f)
(f) The results of an HIV test of an individual that is performed under
sub. (5g) or
(5j) may be disclosed only to the following:
252.15(3m)(f)3.
3. The person who was certified to have had contact that constitutes a significant exposure and to that person's physician, physician assistant, or nurse.
252.15(3m)(g)
(g) A person who was certified to have had contact with body fluid of an individual that constitutes a significant exposure and has the individual's blood subjected to an HIV test under
sub. (5g) or
(5j) may not disclose the identity of the test subject to any other person except for the purpose of having the HIV test performed.
252.15(3m)(h)
(h) A private pay patient may prohibit disclosure of his or her HIV test results under
par. (d) 10. if he or she annually submits to the maintainer of his or her HIV test results under
sub. (4) (c) a signed, written request that disclosure be prohibited.
252.15(4)
(4) Record maintenance. A health care provider, blood bank, blood center, or plasma center that obtains a specimen of body fluids or tissues from a person for the purpose of an HIV test, or offers to subject a person to an HIV test, shall maintain in the person's health care record all of the following:
252.15(4)(b)
(b) A record of whether the person or his or her authorized representative consented to or declined the HIV test under
sub. (2m) (a).
252.15(4)(bm)
(bm) A record of any authorization for disclosure of HIV test results that the person or his or her authorized representative has made as provided under
sub. (3m) (b).
252.15(4)(c)
(c) A record of the results of an HIV test administered to the person, except that results of an HIV test administered under
sub. (5g) or
(5j) or
s. 938.296 (4) or
(5) or
968.38 (4) or
(5) that include the identity of the test subject may not be maintained without the consent of the test subject.
252.15(5g)
(5g) Significant exposure. A person who has contact with body fluid of an individual that constitutes a significant exposure may cause the individual to be subjected to HIV testing and receive the results of the HIV test under
sub. (3m) (e) if all of the following apply:
252.15(5g)(a)
(a) The contact occurred under one of the following circumstances:
252.15(5g)(a)1.
1. The person is 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 and the contact occurred during the course of the person providing care or services to the individual.
252.15(5g)(a)2.
2. The person is 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 and the contact occurred while the person was searching or arresting the individual or while controlling or transferring the individual in custody.
252.15(5g)(a)3.
3. The person is a health care provider or an employee of a health care provider and the contact occurred during the course of the person providing care or treatment to the individual or handling or processing specimens of body fluids or tissues of the individual.
252.15(5g)(a)4.
4. The person is a staff member of a state crime laboratory and the contact occurred during the course of the person handling or processing specimens of body fluids or tissues of the individual.
252.15(5g)(a)5.
5. The person is a social worker or an employee of a school district, cooperative educational service agency, charter school, private school, tribal school, as defined in
s. 115.001 (15m), the Wisconsin Educational Services Program for the Deaf and Hard of Hearing, or the Wisconsin Center for the Blind and Visually Impaired and the contact occurred while the person was performing employment duties involving the individual.
252.15 Note
NOTE: Subd. 5. is shown as affected by 2 acts of the 2009 Wisconsin legislature and as merged by the legislative reference bureau under s. 13.92 (2) (i).
252.15(5g)(a)6.
6. While the person rendered emergency care at the scene of an emergency or accident, if the person is immune from civil liability for rendering the care under
s. 895.48 or
895.4802 (2).
252.15(5g)(b)
(b) If the contact occurs as provided under
par. (a) 1. to
5., the entity that employs or contracts with the person to provide the services described under
par. (a) 1. to
5. requires, as a general policy, that standard precautions against significant exposure be taken during provision of the services, except in those emergency circumstances in which the time necessary for use of the standard precautions would endanger the life of the individual.
252.15(5g)(c)
(c) A physician, physician assistant, or advanced practice nurse prescriber, based on information provided to the physician, physician assistant, or advanced practice nurse prescriber, determines and certifies in writing that the person has had contact that constitutes a significant exposure. The certification shall accompany the request for HIV testing and disclosure. If the person is a physician, physician assistant, or advanced practice nurse prescriber, he or she may not make this determination or certification. The information that is provided to a physician, physician assistant, or advanced practice nurse prescriber to document the occurrence of the contact that constitutes a significant exposure and the physician's, physician assistant's, or advanced practice nurse prescriber's certification that the person has had contact that constitutes a significant exposure, 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).
252.15(5g)(d)
(d) The person submits to an HIV test 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.
252.15(5g)(e)
(e) Except as provided in
sub. (5j), the HIV test is performed on blood of the individual that is drawn for a purpose other than HIV testing.
252.15(5g)(f)
(f) The individual has been given an opportunity to be subjected to an HIV test in accordance with the conditions under
sub. (2m) (a) and has declined.
252.15(5g)(g)
(g) The individual has been informed of all of the following:
252.15(5g)(g)2.
2. That the HIV test results may be disclosed to the person and the person's physician, physician assistant, or nurse.
252.15(5g)(g)3.
3. That, except as provided in
subd. 2., the HIV test may not be disclosed to any person.
252.15(5g)(g)4.
4. That, if the person knows the identity of the individual, the person may not disclose the identity to any other person except for the purpose of having the HIV test performed.
252.15(5g)(g)5.
5. That a record may be kept of the HIV test results only if the record does not reveal the individual's identity.
252.15(5j)(a)(a) A person who may cause an individual to be subjected to HIV testing under
sub. (5g) may request the district attorney to apply to the circuit court for his or her county to order the individual to submit to an HIV test if no blood of the individual that was drawn for a purpose other than HIV testing is available for HIV testing. A person making a request to a district attorney under this paragraph shall provide the district attorney the certification under
sub. (5g) (c).
252.15(5j)(b)
(b) Upon receipt of a request and certification under
par. (a), 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 an HIV test administered by a health care professional.
252.15(5j)(c)
(c) The court shall set a time for a hearing on the matter under this subsection within 20 days after receipt of a request under
par. (b). The court shall give the district attorney and the individual from whom an HIV 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 person who requested a court order for testing has had contact with body fluid of the individual that constitutes a significant exposure, the court shall, except as provided in
par. (d), order the individual to submit to an HIV test. No sample used for laboratory test purposes under this paragraph may disclose the name of the HIV test subject.
252.15(5j)(d)
(d) The court is not required to order an individual to submit to an HIV test under
par. (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.
252.15(5m)
(5m) Autopsies; HIV testing of certain corpses. 252.15(5m)(d)(d) Notwithstanding
s. 157.05, a corpse may be subjected to an HIV test and the test results disclosed to a person who has contact that constitutes a significant exposure with body fluid of the corpse or an individual who subsequently dies, if all of the following apply:
252.15(5m)(d)1.
1. The contact occurs under any of the following circumstances:
252.15(5m)(d)1.a.
a. While the person, including a person exempted from civil liability under the conditions specified under
s. 895.48 or
895.4802 (2) renders emergency care to an emergency or accident victim and the victim subsequently dies prior to performance of an HIV test on the victim.
252.15(5m)(d)1.b.
b. The person is a funeral director, coroner, medical examiner, or appointed assistant to a coroner or medical examiner and the contact occurs while the person prepares the corpse for burial or other disposition or while the person performs an autopsy or assists in performing an autopsy on the corpse.
252.15(5m)(d)1.c.
c. The person is a health care provider or an agent or employee of a health care provider and the person has contact with body fluid of the corpse, or of a patient who dies subsequent to the contact and prior to performance of an HIV test on the patient.
252.15(5m)(d)2.
2. A physician, physician assistant, or advanced practice nurse prescriber, based on information provided to the physician, physician assistant, or advanced practice nurse prescriber, determines and certifies in writing that the contact under
subd. 1. constitutes a significant exposure. A health care provider who as [has] a contact under
par. (d) 1. c. [
subd. 1. c.] may not make the certification under this subdivision for himself or herself.
252.15 Note
NOTE: The correct word and cross-reference are shown in brackets. Corrective legislation is pending.
252.15(5m)(d)3.
3. The certification under
subd. 2. accompanies the request for performance of an HIV test and disclosure.
252.15(5m)(e)
(e) If the conditions under
par. (d) are satisfied, the following person shall order an HIV test of the corpse:
252.15(5m)(e)2.
2. If the contact occurs as provided under
par. (d) 1. b., the attending physician, physician assistant, or advanced practice nurse prescriber of the funeral director, coroner, medical examiner, or appointed assistant.
252.15(5m)(e)3.
3. If the contact occurs as provided under (d) 1. c., the physician, physician assistant, or advanced practice nurse prescriber who makes the certification under
par. (d) 2.
252.15(5r)
(5r) Sale of tests without approval prohibited. No person may sell or offer to sell in this state a test or test kit to detect the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV for self-use by an individual unless the test or test kit is first approved by the state epidemiologist. In reviewing a test or test kit under this subsection, the state epidemiologist shall consider and weigh the benefits, if any, to the public health of the test or test kit against the risks, if any, to the public health of the test or test kit.
252.15(6)
(6) Expanded disclosure of HIV test results prohibited. No person to whom the results of an HIV test have been disclosed under
sub. (3m) (a),
(b),
(d), or
(e) or
(5m) may disclose the test results except as authorized under
sub. (3m) (a),
(b),
(d), or
(e) or
(5m).
252.15(7)
(7) Reporting of positive HIV test results. 252.15(7)(a)(a) Notwithstanding
ss. 227.01 (13) and
227.10 (1), for the purposes of this subsection, the state epidemiologist shall determine, based on the preponderance of available scientific evidence, the procedures necessary in this state to obtain a validated HIV test result and the secretary shall so declare under
s. 250.04 (1) or
(2) (a). The state epidemiologist shall revise this determination if, in his or her opinion, changed available scientific evidence warrants a revision, and the secretary shall declare the revision under
s. 250.04 (1) or
(2) (a).
252.15(7)(b)
(b) If a positive, validated HIV test result is obtained from an HIV test subject, the health care provider, blood bank, blood center, or plasma center that maintains a record of the HIV test result under
sub. (4) (c) shall report to the state epidemiologist the following information:
252.15(7)(b)1.
1. The name and address of the health care provider, blood bank, blood center or plasma center reporting.
252.15(7)(b)2.
2. The name and address of the subject's health care provider, if known.
252.15(7)(b)3.
3. The name, address, telephone number, age or date of birth, race and ethnicity, sex and county of residence of the test subject, if known.
252.15(7)(b)6.
6. Any other medical or epidemiological information required by the state epidemiologist for the purpose of exercising surveillance, control and prevention of HIV infections.
252.15(7)(c)
(c) Except as provided in
sub. (7m), a report made under
par. (b) may not include any of the following:
252.15(7)(c)1.
1. Information with respect to the sexual orientation of the HIV test subject.
252.15(7)(c)2.
2. The identity of persons with whom the HIV test subject may have had sexual contact.
252.15(7)(d)
(d) This subsection does not apply to the reporting of information under
s. 252.05 with respect to persons for whom a diagnosis of acquired immunodeficiency syndrome has been made.
252.15(7m)
(7m) Reporting of persons significantly exposed. If a positive, validated HIV test result is obtained from a test subject, the test subject's physician, physician assistant, or advanced practice nurse prescriber who maintains a record of the HIV test result under
sub. (4) (c) may report to the state epidemiologist the name of any person known to the physician, physician assistant, or advanced practice nurse prescriber to have had contact with body fluid of the test subject that constitutes a significant exposure, only after the physician, physician assistant, or advanced practice nurse prescriber has done all of the following:
252.15(7m)(a)
(a) Counseled the HIV test subject to inform any person who has had contact with body fluid of the test subject that constitutes a significant exposure.
252.15(7m)(b)
(b) Notified the HIV test subject that the name of any person known to the physician, physician assistant, or advanced practice nurse prescriber to have had contact with body fluid of the test subject that constitutes a significant exposure will be reported to the state epidemiologist.
252.15(7r)
(7r) Explanation of HIV for test subjects. The department shall provide to health care providers, blood banks, blood centers, and plasma centers a brief explanation or description of all of the following that a health care provider, blood bank, blood center, or plasma center may provide prospective HIV test subjects under
sub. (2m) (a) 2.:
252.15(7r)(d)
(d) Treatment options for a person who has a positive HIV test result.
252.15(7r)(e)
(e) 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.
252.15(8)(a)(a) Any person violating
sub. (2m),
(3m) (b),
(d), or
(f),
(5m),
(6) or
(7) (c) is liable to the subject of the test for actual damages, costs and reasonable actual attorney fees, plus exemplary damages of up to $2,000 for a negligent violation and up to $50,000 for an intentional violation.
252.15(8)(b)
(b) The plaintiff in an action under
par. (a) has the burden of proving by a preponderance of the evidence that a violation occurred under
sub. (2m),
(3m) (b),
(d), or
(f),
(5m),
(6) or
(7) (c). A conviction under
sub. (2m),
(3m) (b),
(d), or
(f),
(5m),
(6) or
(7) (c) is not a condition precedent to bringing an action under
par. (a).
252.15(9)
(9) Penalties. Whoever intentionally discloses the results of an HIV test in violation of
sub. (3m) (b) or
(f) or
(5m) and thereby causes bodily harm or psychological harm to the subject of the HIV test may be fined not more than $50,000 or imprisoned not more than 9 months or both. Whoever negligently discloses the results of an HIV test in violation of
sub. (3m) (b) or
(f) or
(5m) is subject to a forfeiture of not more than $2,000 for each violation. Whoever intentionally discloses the results of an HIV test in violation of sub.
sub. (3m) (b) or
(f) or
(5m), knowing that the information is confidential, and discloses the information for pecuniary gain may be fined not more than $200,000 or imprisoned not more than 3 years and 6 months, or both.
252.15(10)
(10) Discipline of employees. Any employee of the state or a political subdivision of the state who violates this section may be discharged or suspended without pay.
252.15 History
History: 1985 a. 29,
73,
120;
1987 a. 70 ss.
13 to
27,
36;
1987 a. 403 ss.
136,
256;
1989 a. 200;
1989 a. 201 ss.
11 to
25,
36;
1989 a. 298,
359;
1991 a. 269;
1993 a. 16 s.
2567;
1993 a. 27 ss.
332,
334,
337,
340,
342; Stats. 1993 s. 252.15;
1993 a. 32,
183,
190,
252,
395,
491;
1995 a. 27 ss.
6323,
9116 (5),
9126 (19);
1995 a. 77,
275;
1997 a. 54,
80,
156,
188;
1999 a. 9,
32,
79,
151,
162,
188;
2001 a. 38,
59,
69,
74,
103,
105;
2003 a. 271;
2005 a. 155,
187,
266,
344,
387;
2007 a. 97,
106,
130;
2009 a. 28,
209,
302,
355; s. 13.92 (2) (i).
252.15 Annotation
No claim for a violation of sub. (2) was stated when the defendants neither conducted HIV tests nor were authorized recipients of the test results. Hillman v. Columbia County,
164 Wis. 2d 376,
474 N.W.2d 913 (Ct. App. 1991).
252.15 Annotation
This section does not prevent a court acting in equity from ordering an HIV test where this section does not apply. Syring v. Tucker,
174 Wis. 2d 787,
498 N.W.2d 370 (1993).
252.15 Annotation
This section has no bearing on a case in which a letter from the plaintiff to the defendant pharmacy contained a reference to a drug used only to treat AIDS, but did not disclose the results of an HIV test or directly disclose that the defendant had AIDS. Doe v. American Stores, Co.
74 F. Supp. 2d 855 (1999).
252.15 Annotation
Confidentiality of Medical Records. Meili. Wis. Law. Feb. 1995.
252.15 Annotation
HIV Confidentiality: Who Has the Right to Know? Krimmer. Wis. Law. Feb. 2003.
