AB659: Bill Text

LRB-3246/1

RLR:nwn:rs

2009 - 2010 LEGISLATURE

2009 Assembly BILL 659

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 An Act to repeal 49.686 (1) (g), 252.15 (1) (ab), 252.15 (1) (d), 252.15 (1) (e), 252.15 (2) (title), 252.15 (2) (a) (intro.), 252.15 (2) (a) 4., 252.15 (2) (am), 252.15 (2) (b), 252.15 (2) (bm), 252.15 (3), 252.15 (4) (a), 252.15 (5) (a) 11., 252.15 (5) (a) 15. and 252.15 (5) (a) 18.; to renumber 252.15 (5) (a) 3., 252.15 (5) (a) 5. and 252.15 (5) (a) 8. and 9.; to renumber and amend 252.15 (2) (a) 1., 252.15 (2) (a) 1g., 252.15 (2) (a) 2., 252.15 (2) (a) 3., 252.15 (2) (a) 6., 252.15 (2) (a) 7. a., 252.15 (2) (a) 7. ai., 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 (5) (title), 252.15 (5) (a) (intro.), 252.15 (5) (a) 1., 252.15 (5) (a) 2., 252.15 (5) (a) 4., 252.15 (5) (a) 6., 252.15 (5) (a) 7., 252.15 (5) (a) 10., 252.15 (5) (a) 12., 252.15 (5) (a) 13., 252.15 (5) (a) 14., 252.15 (5) (a) 17., 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) and 252.15 (5m) (c); to amend 48.371 (1) (a), 59.69 (15) (im), 60.63 (10m), 62.23 (7) (i) 9m., 101.02 (19) (a), 103.15 (title), 103.15 (2) (a), 103.15 (2) (b), 103.15 (3), 118.125 (2m) (b), 146.81 (4), 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 (3), 252.13 (4), 252.13 (5), 252.14 (2) (intro.), 252.14 (3), 252.14 (4), 252.15 (title), 252.15 (1) (am), 252.15 (1) (em) (intro.), 252.15 (1) (fm), 252.15 (4) (intro.), 252.15 (4) (c), 252.15 (5m) (title), 252.15 (6), 252.15 (7) (title), 252.15 (7) (a), 252.15 (7) (b) (intro.), 252.15 (7) (b) 4., 252.15 (7) (b) 5., 252.15 (7) (c) 1., 252.15 (7) (c) 2., 252.15 (7m), 252.15 (8), 252.15 (9), 256.15 (12) (a), 440.20 (4), 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 (1) (d), 938.296 (2) (intro.), 938.296 (2) (b), 938.296 (4) (intro.), 938.296 (5) (intro.), 938.346 (1) (e), 938.371 (1) (a), 968.38 (1) (d), 968.38 (2) (intro.), 968.38 (2) (a), 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 (4) (b); and to create 103.15 (1) (bm), 252.01 (2m), 252.12 (1) (b), 252.12 (4), 252.133 (title), 252.14 (2m), 252.15 (1) (ac), 252.15 (2m) (title), 252.15 (2m) (a), 252.15 (2m) (b) (intro.), 252.15 (2m) (b) 4., 252.15 (2m) (b) 5., 252.15 (2m) (c), 252.15 (2r), 252.15 (3m) (b) 1. to 7., 252.15 (3m) (c), 252.15 (3m) (d) (intro.), 252.15 (3m) (e), 252.15 (3m) (f) 1., 252.15 (3m) (g), 252.15 (4) (bm), 252.15 (5g) (intro.) and (a), 252.15 (5g) (a) 6., 252.15 (5g) (g) 3., 252.15 (5j) (title), 252.15 (5m) (d) 1. (intro.), 252.15 (5m) (d) 2. and 3., 252.15 (5m) (e), 252.15 (7) (b) 5m., 252.15 (7r), 938.296 (1) (bm), 968.38 (1) (bc) and 973.017 (4) (a) 1m. of the statutes; relating to: 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 Section 1. 48.371 (1) (a) of the statutes is amended to read:

AB659,5,9 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. (3m) (d) 15., 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).

AB659, s. 2 Section 2. 49.686 (1) (g) of the statutes is repealed.

AB659, s. 3 Section 3. 59.69 (15) (im) of the statutes is amended to read:

AB659,5,18 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.

AB659, s. 4 Section 4. 60.63 (10m) of the statutes is amended to read:

AB659,6,7 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.

AB659, s. 5 Section 5. 62.23 (7) (i) 9m. of the statutes is amended to read:

AB659,6,15 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.

AB659, s. 6 Section 6. 101.02 (19) (a) of the statutes is amended to read:

AB659,7,2 101.02 (19) (a) The department shall, after consulting with the department of health services, develop a report form to document significant exposure to contact with blood or body fluids that constitutes a significant exposure, for use under s. 252.15 (2) (a) 7. ak (5g) (c). The form shall contain the following language for use by a person who may have been significantly exposed had a significant exposure: "REMEMBER — WHEN YOU ARE INFORMED OF AN HIV TEST RESULT BY USING THIS FORM, IT IS A VIOLATION OF THE LAW FOR YOU TO REVEAL TO ANYONE ELSE THE IDENTITY OF THE PERSON WHO IS THE SUBJECT OF THAT TEST RESULT. (PENALTY: POSSIBLE JAIL AND UP TO $10,000 $50,000 FINE)".

AB659, s. 7 Section 7. 103.15 (title) of the statutes is amended to read:

AB659,7,4 103.15 (title) Restrictions on use of a an HIV test for HIV.

AB659, s. 8 Section 8. 103.15 (1) (bm) of the statutes is created to read:

AB659,7,6 103.15 (1) (bm) "HIV test" has the meaning given in s. 252.01 (2m).

AB659, s. 9 Section 9. 103.15 (2) (a) of the statutes is amended to read:

AB659,7,10 103.15 (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.

AB659, s. 10 Section 10. 103.15 (2) (b) of the statutes is amended to read:

AB659,7,15 103.15 (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).

AB659, s. 11 Section 11. 103.15 (3) of the statutes is amended to read:

AB659,7,21 103.15 (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.).

AB659, s. 12 Section 12. 118.125 (2m) (b) of the statutes is amended to read:

AB659,8,2 118.125 (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).