AB969: Bill Text

LRB-1092/4

DAK:kjf:nwn

2007 - 2008 LEGISLATURE

2007 Assembly BILL 969

March 13, 2008 - Introduced by Representative Wasserman. Referred to Committee on Public Health.

AB969,2,18 An Act to repeal 252.15 (1) (e), 252.15 (2) (b) 1., 252.15 (2) (b) 3., 252.15 (2) (bm) (intro.) and 252.15 (4) (a); to renumber and amend 252.15 (2) (a) 3., 252.15 (2) (am) 1., 252.15 (2) (am) 2., 252.15 (2) (b) (intro.), 252.15 (2) (b) 2., 252.15 (2) (bm) 1., 252.15 (2) (bm) 2. and 252.15 (7m); to amend 48.371 (1) (a), 49.686 (1) (g), 59.69 (15) (im), 60.63 (10m), 62.23 (7) (i) 9m., 103.15 (title), 103.15 (2) (a), 103.15 (2) (b), 103.15 (3), 118.125 (2m) (b), 149.12 (1) (intro.), 252.01 (8), 252.11 (5m), 252.11 (7), 252.12 (2) (a) 3. d., 252.12 (2) (a) 5., 252.12 (2) (a) 7., 252.13 (title), 252.13 (1m), 252.13 (1r) (intro.), 252.13 (1r) (a), 252.13 (1r) (b), 252.13 (2), 252.13 (3), 252.13 (4), 252.13 (5), 252.14 (2) (intro.), 252.14 (3), 252.14 (4), 252.15 (title), 252.15 (1) (d), 252.15 (2) (title), 252.15 (2) (a) (intro.), 252.15 (2) (a) 1., 252.15 (2) (a) 1g., 252.15 (2) (a) 2., 252.15 (2) (a) 4., 252.15 (2) (a) 6., 252.15 (2) (a) 7. a., 252.15 (2) (a) 7. ak., 252.15 (2) (a) 7. am., 252.15 (2) (a) 7. ap., 252.15 (2) (a) 7. ar., 252.15 (2) (a) 7. at., 252.15 (2) (a) 7. av., 252.15 (2) (a) 7. b., 252.15 (2) (a) 7. c., 252.15 (2) (a) 7. d., 252.15 (2) (a) 7m., 252.15 (4) (intro.), 252.15 (4) (b), 252.15 (4) (c), 252.15 (5) (a) (intro.), 252.15 (5) (a) 1., 252.15 (5) (a) 2., 252.15 (5) (a) 4. (intro.), 252.15 (5) (a) 4. a., 252.15 (5) (a) 4. b., 252.15 (5) (a) 10. (intro.), 252.15 (5) (a) 10. c., 252.15 (5) (a) 13., 252.15 (5) (a) 14., 252.15 (5) (a) 15., 252.15 (5) (a) 19., 252.15 (5) (a) 20., 252.15 (5) (b), 252.15 (5m) (intro.), 252.15 (5m) (a), 252.15 (5m) (b), 252.15 (5m) (c), 252.15 (6), 252.15 (7) (title), 252.15 (7) (a), 252.15 (7) (b) (intro.), 252.15 (7) (b) 3., 252.15 (7) (b) 4., 252.15 (7) (b) 5., 252.15 (7) (c) 1., 252.15 (7) (c) 2., 252.15 (8) (a), 252.15 (9), 631.90 (1), 631.90 (2) (a), 631.90 (2) (b), 631.90 (2) (c), 631.90 (3) (a), 631.90 (3) (b), 901.05 (2) (intro.), 938.296 (2) (intro.), 938.296 (4) (intro.), 938.296 (5) (intro.), 938.346 (1) (e), 938.371 (1) (a), 968.38 (2) (intro.), 968.38 (4) (intro.), 968.38 (5) (intro.), 973.017 (4) (b) 1. and 973.017 (4) (b) 2.; to repeal and recreate 252.15 (3) and 252.15 (5) (title); and to create 103.15 (1) (bm), 146.82 (2) (a) 22., 252.01 (2m), 252.15 (1) (cw), 252.15 (2) (am) 1. b., 252.15 (2) (am) 2. b., 252.15 (4) (bm), 252.15 (5) (a) 21., 252.15 (7) (b) 5m., 252.15 (7m) (bg), 938.296 (1) (bm), 968.38 (1) (bc) and 973.017 (4) (a) 1m. of the statutes; relating to: changing informed consent requirements for HIV testing, disclosure of test results, reporting significantly exposed persons, increasing liability for certain violations, and providing penalties.

Analysis by the Legislative Reference Bureau

Currently, before administering a test for the presence of the human immunodeficiency virus (HIV), antigen or nonantigenic products of HIV, or an antibody to HIV (test) and before disclosing the test results, the administrator of the test or the discloser must, with certain exceptions, obtain the written consent of the test subject. The consent must be given on an informed consent form for testing or disclosure, which must be signed and which must contain all of the following:

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 and has been found to be incapacitated, the name of the health care agent.

2. A statement of explanation to the potential test subject that the test results may be disclosed without consent under certain circumstances.

3. Spaces specifically designated for the signatures of the potential test subject, or, if the potential test subject has executed a power of attorney for health care instrument and has been found to be incapacitated, of the health care agent providing informed consent for the testing and the date on which the consent form is signed.

4. 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 and has been found to be incapacitated, the health care agent, authorizes that disclosure of test results may 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.

Currently, a health care provider, peace officer, fire fighter, correctional officer, state patrol officer, jailer, home health agency, inpatient health care facility, or person who has access to a validated test result is prohibited from performing certain discriminatory actions with respect to an individual who has AIDS or HIV (for example, refusing to treat) solely because of the existence of that condition. A violator of these provisions is liable to the patient for actual damages and costs, plus exemplary damages of up to $5,000 for an intentional violation.

Also, currently, disclosure of an individual's test results is prohibited; an intentional disclosure in violation of the prohibition is subject to a fine of up to $25,000 or imprisonment of up to nine months, or both, and negligent disclosure is subject to a forfeiture of $1,000. Intentional disclosure of an individual's test results for pecuniary gain is subject to a fine of up to $100,000 and imprisonment of up to three years and six months, or both. Lastly, a violator of the prohibition is civilly liable to the individual whose test results are disclosed, for actual damages, costs, and reasonable actual attorneys fees, plus exemplary damages of up to $1,000 for a negligent violation and of up to $25,000 for an intentional violation. However, numerous exceptions exist to the test disclosure prohibition; one of these requires the health care provider, blood bank, blood center, or plasma center that obtains a positive, validated test result from a test subject to report certain information to the state epidemiologist. Such a report may not include information about the test subject's sexual orientation or the identity of persons with whom he or she may have had sexual contact, except that a physician or advanced practice nurse prescriber of such a test subject may, after first counseling and notifying the subject, report to the state epidemiologist the name of any person known to the physician or nurse prescriber to have been exposed with a possibility of transmission of HIV (significantly exposed) to the test subject. In addition, an individual may be tested without his or her consent and the test results disclosed, in certain circumstances in which a person is significantly exposed to the individual or in certain instances of alleged sexual assault by the individual.

Lastly, currently, a health care provider who procures, processes, distributes, or uses human sperm that is donated to take effect on or after the donor's death (an anatomical gift) must, before distributing or using the donation and with informed consent, test the proposed donor for HIV initially and, if the initial results are negative, perform a second test not less than 180 days from the date of procurement of the sperm. If any HIV test result is positive, the sperm may not be used and must be destroyed. A health care provider must also test for HIV a proposed donor of human ova that is donated as an anatomical gift.

This bill eliminates the requirement that consent for testing for HIV be obtained on an informed consent to testing and disclosure form before administering the test. Instead, the bill requires that a health care provider, blood bank, blood center, or plasma center first orally inform the potential test subject that, as a routine part of medical care, a test will be performed unless the potential test subject declines to provide consent. The potential test subject may give oral consent, or, if he or she does not decline, the health care provider, blood bank, blood center, or plasma center may infer that the potential test subject has given informed consent for testing.

The bill also eliminates the requirement that consent for disclosure of test results be obtained on an informed consent to testing and disclosure form before disclosure may be made. Instead, the bill requires that a health care provider, blood bank, blood center, or plasma center inform the test subject (or the test subject's health care agent, under certain circumstances) that the test subject or agent has the right to identify persons to whom the test results may be disclosed, to identify persons to whom test results may not be disclosed, and to specify the time period for the authorization or refusal to disclose. The health care provider, blood bank, blood center, or plasma center must furnish the means by which this authorization or refusal may be indicated by the test subject or agent and must provide the test subject or agent with a statement of explanation about persons to whom disclosure may be made without consent under certain circumstances and a listing of those persons and circumstances. The bill clarifies that the health care provider, blood bank, blood center, or plasma center that tests an individual must maintain in the individual's health care record a record of informed consent or refusal to consent made; a record of persons to whom disclosure may be made or from whom disclosure must be withheld; and a record of test results obtained.

The bill changes requirements for distribution and use of donated human sperm and ova. Under the bill, a health care provider must obtain informed consent for HIV testing from the donor, unless the donation is an anatomical gift; must have the donor administered an initial HIV test; and may not use the donated sperm unless the donor is administered a second test not less than 180 days after procuring the sperm. This second test is not required, however, if the sperm is donated as an anatomical gift or if the donation is from a donor known to the donee and the donee waives, in a written statement, performance of the second test. If any validated HIV test result of the donor is positive, the sperm donated may not be used and must be destroyed unless the donation is from a donor known to the donee, the health care provider informs the donee of potential medical risks associated with use of the sperm, the donee provides informed consent to the use, and the health care provider provides prophylactic treatments of the sperm and appropriate follow-up testing to the donee. For donated human ova or fertilized human ova, a health care provider must, before distribution and use, have the donor or, for fertilized ova, donors administered an HIV test. If any validated HIV test result of the donor or donors is positive, the donated ova or fertilized ova may not be used and shall be destroyed, unless the donation is from a donor known to the donee, the health care provider informs the donee of potential medical risks associated with use of the ova or fertilized ova, the donee provides informed consent to the use, and the health care provider provides prophylactic treatments of the ova and appropriate follow-up testing to the donee.

The bill requires a health care provider, blood bank, blood center, or plasma center that must report to the state epidemiologist information concerning a test subject's positive, validated test result also to report to the state epidemiologist the mode by which HIV was transmitted to the test subject. Also, the bill authorizes the physician or advanced practice nurse prescriber of the subject of a positive, validated test result, after counseling and notifying the subject, to report to the state epidemiologist the name of any person likely to have been significantly exposed to the test subject; the state epidemiologist may designate an individual, including the local health officer, to notify this person of the likely significant exposure.

The bill increases the monetary penalties for intentional disclosure of the results of a test to a $50,000 fine and, for negligent disclosure, to a $2,000 forfeiture. The monetary penalty for intentional disclosure of a test, for pecuniary gain, is increased to $200,000. The exemplary damages, under civil liability, are increased to up to $2,000 for a negligent disclosure and up to $50,000 for an intentional disclosure. The bill also increases, to up to $10,000, the amount of liability in exemplary damages for violation of prohibitions on discriminatory actions against individuals with AIDS or HIV.

The bill modifies the definitions of "validated test result" and "informed consent for testing or disclosure" in current law and defines "HIV test" and "informed consent for disclosure." In addition, the bill makes numerous technical changes to the laws restricting use of a test.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB969, s. 1 Section 1. 48.371 (1) (a) of the statutes is amended to read:

AB969,6,4 48.371 (1) (a) Results of a an HIV test or a series of tests, as defined in s. 252.01 (2m), of the child to determine the presence of HIV, as defined in s. 968.38 (1) (b), antigen or nonantigenic products of HIV, or an antibody to HIV, as provided under s. 252.15 (5) (a) 19., including results included in a court report or permanency plan. At the time that the HIV test results are provided, the agency shall notify the foster parent, treatment foster parent, relative, or operator of the group home or residential care center for children and youth of the confidentiality requirements under s. 252.15 (6).

AB969, s. 2 Section 2. 49.686 (1) (g) of the statutes is amended to read:

AB969,6,9 49.686 (1) (g) "Validated HIV test result" means a result of a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV that meets the validation requirements determined to be necessary by the state epidemiologist has the meaning given in s. 252.01 (8).

AB969, s. 3 Section 3. 59.69 (15) (im) of the statutes is amended to read:

AB969,6,17 59.69 (15) (im) The fact that an individual with acquired immunodeficiency syndrome or a positive HIV test for the presence of HIV, as defined in s. 252.01 (1m), antigen or nonantigenic products of HIV or an antibody to HIV (2m), resides in a community living arrangement with a capacity for 8 or fewer persons may not be used under par. (i) to assert or prove that the existence of the community living arrangement in the municipality poses a threat to the health, safety or welfare of the residents of the municipality.

AB969, s. 4 Section 4. 60.63 (10m) of the statutes is amended to read:

AB969,6,25 60.63 (10m) The fact that an individual with acquired immunodeficiency syndrome or a positive HIV test for the presence of HIV, as defined in s. 252.01 (1m), antigen or nonantigenic products of HIV or an antibody to HIV (2m), resides in a community living arrangement with a capacity for 8 or fewer persons may not be used under sub. (10) to assert or prove that the existence of the community living arrangement in the town poses a threat to the health, safety or welfare of the residents of the town.

AB969, s. 5 Section 5. 62.23 (7) (i) 9m. of the statutes is amended to read:

AB969,7,8 62.23 (7) (i) 9m. The fact that an individual with acquired immunodeficiency syndrome or a positive HIV test for the presence of HIV, as defined in s. 252.01 (1m), antigen or nonantigenic products of HIV or an antibody to HIV (2m), resides in a community living arrangement with a capacity for 8 or fewer persons may not be used under subd. 9. to assert or prove that the existence of the community living arrangement in the city poses a threat to the health, safety or welfare of the residents of the city.

AB969, s. 6 Section 6. 103.15 (title) of the statutes is amended to read:

AB969,7,10 103.15 (title) Restrictions on use of a an HIV test for HIV.

AB969, s. 7 Section 7. 103.15 (1) (bm) of the statutes is created to read:

AB969,7,12 103.15 (1) (bm) "HIV test" has the meaning given in s. 252.01 (2m).

AB969, s. 8 Section 8. 103.15 (2) (a) of the statutes is amended to read:

AB969,7,16 103.15 (2) (a) Solicit or require an HIV test as a condition of employment of any employee or prospective employee a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.

AB969, s. 9 Section 9. 103.15 (2) (b) of the statutes is amended to read:

AB969,7,21 103.15 (2) (b) Affect the terms, conditions or privileges of employment or terminate the employment of any employee who obtains a an HIV test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV, as defined in s. 252.01 (2m).

AB969, s. 10 Section 10. 103.15 (3) of the statutes is amended to read:

AB969,8,2 103.15 (3) Any agreement by an employer or agent of the employer and an employee or prospective employee offering employment or any pay or benefit to an employee or prospective employee in return for taking a an HIV test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV is prohibited, except as provided under sub. (2) (intro.).

AB969, s. 11 Section 11. 118.125 (2m) (b) of the statutes is amended to read:

AB969,8,7 118.125 (2m) (b) Any pupil record that concerns the results of a an HIV test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV, as defined in s. 252.01 (2m), shall be treated as provided under s. 252.15. In this subsection, "HIV" has the meaning given in s. 252.01 (1m).

AB969, s. 12 Section 12. 146.82 (2) (a) 22. of the statutes is created to read:

AB969,8,10 146.82 (2) (a) 22. To a local health officer, as specified under s. 252.03, 252.05, 252.06, 252.12, 252.15 (7m) (bg), or 252.21 (1).

AB969, s. 13 Section 13. 149.12 (1) (intro.) of the statutes is amended to read:

AB969,8,19 149.12 (1) (intro.) Except as provided in subs. (1m), (2), and (3), the authority shall certify as eligible a person who is covered by Medicare because he or she is disabled under 42 USC 423, a person who submits evidence that he or she has tested positive for the presence of HIV, antigen or nonantigenic products of HIV, or an antibody to HIV, a positive, validated HIV test result, as defined in s. 252.01 (8); a person who is an eligible individual,; and any person who receives and submits any of the following based wholly or partially on medical underwriting considerations within 9 months prior to making application for coverage by the plan: