AB659: Bill Text

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).

AB659, s. 13 Section 13. 146.81 (4) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB659,8,18 146.81 (4) "Patient health care records" means all records related to the health of a patient prepared by or under the supervision of a health care provider; and all records made by an ambulance service provider, as defined in s. 256.01 (3), an emergency medical technician, as defined in s. 256.01 (5), or a first responder, as defined in s. 256.01 (9), in administering emergency care procedures to and handling and transporting sick, disabled, or injured individuals. "Patient health care records" includes billing statements and invoices for treatment or services provided by a health care provider and includes health summary forms prepared under s. 302.388 (2). "Patient health care records" does not include those records subject to s. 51.30, reports collected under s. 69.186, records of tests administered under s. 252.15 (2) (a) 7. (5g) or (5j), 343.305, 938.296 (4) or (5) or 968.38 (4) or (5), records related to sales of pseudoephedrine products, as defined in s. 961.01 (20c), that are maintained by pharmacies under s. 961.235, fetal monitor tracings, as defined under s. 146.817 (1), or a pupil's physical health records maintained by a school under s. 118.125.

AB659, s. 14 Section 14. 149.12 (1) (intro.) of the statutes is amended to read:

AB659,9,2 149.12 (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:

AB659, s. 15 Section 15. 252.01 (2m) of the statutes is created to read:

AB659,9,5 252.01 (2m) "HIV test" means a test for the presence of HIV or an antibody to HIV.

AB659, s. 16 Section 16. 252.01 (8) of the statutes is amended to read:

AB659,9,10 252.01 (8) "Validated HIV test result" means a result of a an HIV 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.

AB659, s. 17 Section 17. 252.11 (5m) of the statutes is amended to read:

AB659,9,17 252.11 (5m) A health care professional, as defined in s. 968.38 (1) (a), acting under an order of a court under s. 938.296 (4) or (5) or 968.38 (4) or (5) may, without first obtaining informed consent to the testing, subject an individual to a test or a series of tests to ascertain whether that individual is infected with a sexually transmitted disease. No sample used for performance of a test under this subsection may disclose the name of the test subject.

AB659, s. 18 Section 18. 252.11 (7) of the statutes is amended to read:

AB659,9,25 252.11 (7) Reports, examinations and inspections and all records concerning sexually transmitted diseases are confidential and not open to public inspection, and may not be divulged except as may be necessary for the preservation of the public health, in the course of commitment proceedings under sub. (5), or as provided under s. 938.296 (4) or (5) or 968.38 (4) or (5). If a physician or advanced practice nurse prescriber has reported a case of sexually transmitted disease to the department under sub. (4), information regarding the presence of the disease and treatment is not privileged when the patient, physician, or advanced practice nurse prescriber is called upon to testify to the facts before any court of record.

AB659, s. 19 Section 19. 252.12 (1) (b) of the statutes is created to read:

AB659,10,8 252.12 (1) (b) "AIDS service organizations" means 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 HIV infection, and that are designated as such by the department under sub. (4).

AB659, s. 20 Section 20. 252.12 (2) (a) 3. d. of the statutes is amended to read:

AB659,10,11 252.12 (2) (a) 3. d. Locations for procuring additional information or obtaining HIV testing services.

AB659, s. 21 Section 21. 252.12 (2) (a) 5. of the statutes is amended to read:

AB659,10,19 252.12 (2) (a) 5. The department shall perform HIV tests for the presence of HIV and, if appropriate, tests for the presence of related infections and shall conduct behavioral surveys among population groups determined by the department to be highly at risk of becoming infected with or transmitting HIV and related infections. Information obtained shall be used to develop targeted HIV infection and related infection prevention efforts for these groups and to evaluate the state's prevention strategies.

AB659, s. 22 Section 22. 252.12 (2) (a) 7. of the statutes is amended to read:

AB659,10,25 252.12 (2) (a) 7. The department shall distribute funding in each fiscal year to contract with organizations to provide, at alternate testing sites, anonymous or confidential counseling services for HIV and, laboratory HIV testing services for the presence of HIV, and, if appropriate, laboratory testing services for the presence of related viruses.

AB659, s. 23 Section 23. 252.12 (4) of the statutes is created to read:

AB659,11,4 252.12 (4) Designation of AIDS service organizations. The department shall designate AIDS service organizations and specify the geographical area of the state in which they are designated to provide services.

AB659, s. 24 Section 24. 252.13 (title) of the statutes is amended to read:

AB659,11,6 252.13 (title) Blood HIV tests for HIV.

AB659, s. 25 Section 25. 252.13 (1m) of the statutes is amended to read:

AB659,11,21 252.13 (1m) Except as provided under sub. (3), any blood bank, blood center or plasma center in this state that purchases or receives whole blood, blood plasma, a blood product or a blood derivative shall, prior to its distribution or use and in accordance with informed consent under the requirements of conditions under s. 252.15 (2) (b) (2m) (a), subject that blood, plasma, product or derivative to a an HIV test or series of tests that the state epidemiologist finds medically significant and sufficiently reliable under sub. (1r) (a) to detect the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV. This subsection does not apply to a blood bank that purchases or receives whole blood, blood plasma, a blood product or a blood derivative from a blood bank, blood center or plasma center in this state if the whole blood, blood plasma, blood product or blood derivative has previously been subjected to a an HIV test or series of tests that the state epidemiologist finds medically significant and sufficiently reliable under sub. (1r) (a) to detect the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.

AB659, s. 26 Section 26. 252.13 (1r) (intro.) of the statutes is amended to read:

AB659,12,2 252.13 (1r) (intro.) For the purposes of this section, the state epidemiologist shall make separate findings of medical significance and sufficient reliability for a an HIV test or a series of HIV tests to detect the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV for each of the following purposes:

AB659, s. 27 Section 27. 252.13 (3) of the statutes is amended to read:

AB659,12,7 252.13 (3) If a medical emergency, including a threat to the preservation of life of a potential donee, exists under which whole blood, blood plasma, a blood product, or a blood derivative that has been subjected to HIV testing under sub. (1m) is unavailable, the requirement of sub. (1m) shall not apply.

AB659, s. 28 Section 28. 252.13 (4) of the statutes is amended to read:

AB659,12,11 252.13 (4) Subsections (1m) and (2) do not apply to the extent that federal law or regulations require that a blood bank, blood center, or plasma center administer an HIV test to whole blood, blood plasma, a blood product, or a blood derivative.

AB659, s. 29 Section 29. 252.13 (5) of the statutes is amended to read:

AB659,12,21 252.13 (5) Whole blood, blood plasma, a blood product , or a blood derivative described under sub. (2) that is voluntarily donated solely for the purpose of an autologous transfusion may be distributed to or used by the person who has donated the whole blood, blood plasma, blood product, or blood derivative. No person other than the person who has donated the whole blood, blood plasma, blood product, or blood derivative may receive or use the whole blood, blood plasma, blood product, or blood derivative unless it has been subjected to a an HIV test under sub. (1m) and performance of the test has yielded a negative, validated HIV test result for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.

AB659, s. 30 Section 30. 252.133 (title) of the statutes is created to read:

AB659,12,23 252.133 (title) HIV testing for anatomical gifts.

AB659, s. 31 Section 31. 252.14 (2) (intro.) of the statutes is amended to read:

AB659,13,9 252.14 (2) (intro.) No health care provider, peace officer, fire fighter, correctional officer, state patrol officer, jailer or keeper of a jail or person designated with custodial authority by the jailer or keeper, home health agency, inpatient health care facility, or person who has access to a validated HIV test result may do any of the following with respect to an individual who has acquired immunodeficiency syndrome or has a positive, validated HIV test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV result, solely because the individual has HIV infection or an illness or medical condition that is caused by, arises from, or is related to HIV infection:

AB659, s. 32 Section 32. 252.14 (2m) of the statutes is created to read: