252.14(1)(d)
(d) "Inpatient health care facility" means a hospital, nursing home, community-based residential facility, county home, county mental health complex or other place licensed or approved by the department under
s. 49.70,
49.71,
49.72,
50.02,
50.03,
50.35,
51.08 or
51.09 or a facility under
s. 45.365,
48.62,
51.05,
51.06,
233.40,
233.41,
233.42 or
252.10.
252.14(2)
(2) 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 test result may do any of the following with respect to an individual who has acquired immunodeficiency syndrome or has a positive test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV, 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:
252.14(2)(a)
(a) Refuse to treat the individual, if his or her condition is within the scope of licensure or certification of the health care provider, home health agency or inpatient health care facility.
252.14(2)(am)
(am) If a 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, refuse to provide services to the individual.
252.14(2)(b)
(b) Provide care to the individual at a standard that is lower than that provided other individuals with like medical needs.
252.14(2)(bm)
(bm) If a 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, provide services to the individual at a standard that is lower than that provided other individuals with like service needs.
252.14(2)(c)
(c) Isolate the individual unless medically necessary.
252.14(2)(d)
(d) Subject the individual to indignity, including humiliating, degrading or abusive treatment.
252.14(3)
(3) A health care provider, home health agency or inpatient health care facility that tests an individual for HIV infection shall provide counseling about HIV and referral for appropriate health care and support services as necessary. A health care provider, home health agency or inpatient health care facility that treats an individual who has an HIV infection or acquired immunodeficiency syndrome shall develop and follow procedures that shall ensure continuity of care for the individual in the event that his or her condition exceeds the scope of licensure or certification of the provider, agency or facility.
252.14(4)
(4) Any person violating
sub. (2) is liable to the patient for actual damages and costs, plus exemplary damages of up to $5,000 for an intentional violation. In determining the amount of exemplary damages, a court shall consider the ability of a health care provider who is an individual to pay exemplary damages.
252.14 History
History: 1989 a. 201;
1991 a. 32,
39,
160,
189,
269,
315;
1993 a. 27 ss.
326 to
331; Stats. 1993 s. 252.14;
1993 a. 105,
190,
252,
443;
1993 a. 490 s.
143;
1993 a. 491,
495;
1995 a. 27 ss.
6322,
9145 (1);
1997 a. 27,
35,
67,
75,
175;
1999 a. 9,
32,
180;
2001 a. 70,
80,
89.
252.15
252.15
Restrictions on use of a test for HIV. 252.15(1)(ab)
(ab) "Affected person" means an emergency medical technician; first responder; fire fighter; peace officer; correctional officer; person who is employed at a secured correctional facility, as defined in
s. 938.02 (15m), a secured child caring institution, as defined in
s. 938.02 (15g), or a secured group home, as defined in
s. 938.02 (15p); state patrol officer; jailer, keeper of a jail, or person designated with custodial authority by the jailer or keeper; health care provider; employee of a health care provider; staff member of a state crime laboratory; social worker; or employee of a school district, cooperative educational service agency, charter school, private school, the Wisconsin Educational Services Program for the Deaf and Hard of Hearing, or the Wisconsin Center for the Blind and Visually Impaired.
252.15(1)(am)
(am) "Health care professional" means a physician who is licensed under
ch. 448 or a registered nurse or licensed practical nurse who is licensed under
ch. 441.
252.15(1)(ar)
(ar) "Health care provider" means any of the following:
252.15(1)(ar)1.
1. A person or entity that is specified in
s. 146.81 (1), but does not include a massage therapist or bodyworker issued a certificate under
ch. 460.
252.15(1)(ar)3.
3. An employee of the Mendota Mental Health Institute or the Winnebago Mental Health Institute.
252.15(1)(d)
(d) "Informed consent for testing or disclosure" means consent in writing on an informed consent for testing or disclosure form by a person to the administration of a test to him or her for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV or to the disclosure to another specified person of the results of a test administered to the person consenting.
252.15(1)(e)
(e) "Informed consent for testing or disclosure form" means a printed document on which a person may signify his or her informed consent for testing for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV or authorize the disclosure of any test results obtained.
252.15(1)(eg)
(eg) "Relative" means a spouse, parent, grandparent, stepparent, brother, sister, first cousin, nephew or niece; or uncle or aunt within the 3rd degree of kinship as computed under
s. 990.001 (16). This relationship may be by blood, marriage or adoption.
252.15(1)(em)
(em) "Significantly exposed" means sustained a contact which carries a potential for a transmission of HIV, by one or more of the following:
252.15(1)(em)1.
1. Transmission, into a body orifice or onto mucous membrane, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.
252.15(1)(em)2.
2. Exchange, during the accidental or intentional infliction of a penetrating wound, including a needle puncture, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.
252.15(1)(em)3.
3. Exchange, into an eye, an open wound, an oozing lesion, or where a significant breakdown in the epidermal barrier has occurred, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.
252.15(1)(em)6.
6. Other routes of exposure, defined as significant in rules promulgated by the department. The department in promulgating the rules shall consider all potential routes of transmission of HIV identified by the centers for disease control of the federal public health service.
252.15(1)(er)
(er) "Social worker" means an individual who is certified or licensed as a social worker, advanced practice social worker, independent social worker, or clinical social worker under
ch. 457.
252.15(1)(fm)
(fm) "Universal precautions" means measures that a health care provider, an employee of a health care provider or other individual takes in accordance with recommendations of the federal centers for disease control for the health care provider, employee or other individual for prevention of HIV transmission in health-care settings.
252.15(2)
(2) Informed consent for testing or disclosure. 252.15(2)(a)(a) No health care provider, blood bank, blood center or plasma center may subject a person to a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV unless the subject of the test first provides informed consent for testing or disclosure as specified under
par. (b), except that consent to testing is not required for any of the following:
252.15(2)(a)1.
1. Except as provided in
subd. 1g., a health care provider who procures, processes, distributes or uses a human body part or human tissue donated as specified under
s. 157.06 (6) (a) or
(b) shall, without obtaining consent to the testing, test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV in order to assure medical acceptability of the gift for the purpose intended. The health care provider shall use as a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV a test or series of tests that the state epidemiologist finds medically significant and sufficiently reliable to detect the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV. If the validated test result of the donor from the test or series of tests performed is positive, the human body part or human tissue donated for use or proposed for donation may not be used.
252.15(2)(a)1g.
1g. If a medical emergency, as determined by the attending physician of a potential donee and including a threat to the preservation of life of the potential donee, exists under which a human body part or human tissue that has been subjected to testing under
subd. 1. is unavailable, the requirement of
subd. 1. does not apply.
252.15(2)(a)2.
2. The department, a laboratory certified under
42 USC 263a or a health care provider, blood bank, blood center or plasma center may, for the purpose of research and without first obtaining written consent to the testing, subject any body fluids or tissues to a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV if the testing is performed in a manner by which the identity of the test subject is not known and may not be retrieved by the researcher.
252.15(2)(a)3.
3. The medical director of a center for the developmentally disabled, as defined in
s. 51.01 (3), or a mental health institute, as defined in
s. 51.01 (12), may, without obtaining consent to the testing, subject a resident or patient of the center or institute to a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV if he or she determines that the conduct of the resident or patient poses a significant risk of transmitting HIV to another resident or patient of the center or institute.
252.15(2)(a)4.
4. A health care provider may subject an individual to a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV, without obtaining consent to the testing from the individual, if all of the following apply:
252.15(2)(a)4.a.
a. The individual has been adjudicated incompetent under
ch. 880, is under 14 years of age or is unable to give consent because he or she is unable to communicate due to a medical condition.
252.15(2)(a)4.b.
b. The health care provider obtains consent for the testing from the individual's guardian, if the individual is adjudicated incompetent under
ch. 880; from the individual's parent or guardian, if the individual is under 14 years of age; or from the individual's closest living relative or another with whom the individual has a meaningful social and emotional relationship if the individual is not a minor nor adjudicated incompetent.
252.15(2)(a)6.
6. A health care professional acting under an order of the court under
subd. 7. or
s. 938.296 (4) or
(5) or
968.38 (4) or
(5) may, without first obtaining consent to the testing, subject an individual to a test or a series of tests to detect the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV. No sample used for laboratory test purposes under this subdivision may disclose the name of the test subject, and, notwithstanding
sub. (4) (c), the test results may not be made part of the individual's permanent medical record.
252.15(2)(a)7.a.a. If all of the conditions under
subd. 7. ai. to
c. are met, an emergency medical technician; first responder; fire fighter; peace officer; correctional officer; person who is employed at a secured correctional facility, as defined in
s. 938.02 (15m), a secured child caring institution, as defined in
s. 938.02 (15g), or a secured group home, as defined in
s. 938.02 (15p); state patrol officer; jailer, keeper of a jail, or person designated with custodial authority by the jailer or keeper, during the course of providing care or services to an individual; 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, while searching or arresting an individual or while controlling or transferring an individual in custody; a health care provider or an employee of a health care provider, during the course of providing care or treatment to an individual or handling or processing specimens of body fluids or tissues of an individual; a staff member of a state crime laboratory, during the course of handling or processing specimens of body fluids or tissues of an individual; social worker; or an employee of a school district, cooperative educational service agency, charter school, private school, the Wisconsin Educational Services Program for the Deaf and Hard of Hearing, or the Wisconsin Center for the Blind and Visually Impaired, while performing employment duties involving an individual; who is significantly exposed to the individual may subject the individual's blood to a test or a series of tests for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV and may receive disclosure of the results.
252.15(2)(a)7.ai.
ai. The affected person uses universal precautions, if any, against significant exposure, and was using universal precautions at the time that he or she was significantly exposed, except in those emergency circumstances in which the time necessary for use of the universal precautions would endanger the life of the individual.
252.15(2)(a)7.ak.
ak. A physician, based on information provided to the physician, determines and certifies in writing that the affected person has been significantly exposed. The certification shall accompany the request for testing and disclosure. If the affected person who is significantly exposed is a physician, he or she may not make this determination or certification. The information that is provided to a physician to document the occurrence of a significant exposure and the physician's certification that an affected person has been significantly exposed, under this
subd. 7. ak., 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(2)(a)7.am.
am. The affected person submits to a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV, 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(2)(a)7.ap.
ap. Except as provided in
subd. 7. av. to
c., the test is performed on blood that is drawn for a purpose other than testing for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.
252.15(2)(a)7.ar.
ar. The individual, if capable of consenting, has been given an opportunity to be tested with his or her consent and has not consented.
252.15(2)(a)7.at.
at. The individual has been informed that his or her blood may be tested for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV; that the test results may be disclosed to no one, including that individual, without his or her consent, except to the person who is certified to have been significantly exposed; that, if the person knows the identity of the individual, he or she may not disclose the identity to any other person except for the purpose of having the test or series of tests performed; and that a record may be kept of the test results only if the record does not reveal the individual's identity.
252.15(2)(a)7.av.
av. If blood that is specified in
subd. 7. ap. is unavailable, the person who is certified under
subd. 7. ak. to have been significantly exposed may request the district attorney to apply to the circuit court for his or her county to order the individual to submit to a test or a series of tests for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV and to disclose the results to that person. The person who is certified under
subd. 7. ak. to have been significantly exposed shall accompany the request with the certification under
subd. 7. ak.
252.15(2)(a)7.b.
b. Upon receipt of a request and certification under the requirements of this subdivision, 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 a test or a series of tests as specified in
subd. 7. a., administered by a health care professional, and to disclose the results of the test or tests as specified in
subd. 7. c.
252.15(2)(a)7.c.
c. The court shall set a time for a hearing on the matter under
subd. 7. a. within 20 days after receipt of a request under
subd. 7. b. The court shall give the district attorney and the individual from whom a 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 individual has significantly exposed the affected person, the court shall, except as provided in
subd. 7. d., order the individual to submit to a test or a series of tests for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV. The court shall require the health care professional who performs the test or series of tests to refrain from disclosing the test results to the individual and to disclose the test results to the affected person and his or her health care professional. No sample used for laboratory test purposes under this
subd. 7. c. may disclose the name of the test subject.
252.15(2)(a)7.d.
d. The court is not required to order the individual to submit to a test under
subd. 7. 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(2)(a)7m.
7m. The test results of an individual under
subd. 7. may be disclosed only to the individual, if he or she so consents, to anyone authorized by the individual and to the affected person who was certified to have been significantly exposed. A record may be retained of the test results only if the record does not reveal the individual's identity. If the affected person knows the identity of the individual whose blood was tested, he or she may not disclose the identity to any other person except for the purpose of having the test or series of tests performed.
252.15(2)(am)1.1. A health care provider who procures, processes, distributes or uses human sperm donated as specified under
s. 157.06 (6) (a) or
(b) shall, prior to the distribution or use and with informed consent under the requirements of
par. (b), test the proposed donor for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV in order to assure medical acceptability of the gift for the purpose intended. The health care provider shall use as a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV a test or series of tests that the state epidemiologist finds medically significant and sufficiently reliable under
s. 252.13 (1r) to detect the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV. The health care provider shall test the donor initially and, if the initial test result is negative, shall perform a 2nd test on a date that is not less than 180 days from the date of the procurement of the sperm. No person may use the donated sperm until the health care provider has obtained the results of the 2nd test. If any validated test result of the donor for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV is positive, the sperm donated for use may not be used and, if donated, shall be destroyed.
252.15(2)(am)2.
2. A health care provider who procures, processes, distributes or uses human ova donated as specified under
s. 157.06 (6) (a) or
(b) shall, prior to the distribution or use and with informed consent under the requirements of
par. (b), test the proposed donor for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV in order to assure medical acceptability of the gift for the purpose intended.
252.15(2)(b)
(b) The health care provider, blood bank, blood center or plasma center that subjects a person to a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV under
pars. (a) and
(am) shall, in instances under those paragraphs in which consent is required, provide the potential test subject with an informed consent form for testing or disclosure that shall contain the following information and on the form shall obtain the potential test subject's signature or may, if the potential test subject has executed a power of attorney for health care instrument under
ch. 155 and has been found to be incapacitated under
s. 155.05 (2), instead obtain the signature of the health care agent:
252.15(2)(b)1.
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 under
ch. 155 and has been found to be incapacitated under
s. 155.05 (2), the name of the health care agent.
252.15(2)(b)2.
2. A statement of explanation to the potential test subject that the test results may be disclosed as specified under
sub. (5) (a) and either a listing that duplicates the persons or circumstances specified under
sub. (5) (a) 2. to
19. or a statement that the listing is available upon request.
252.15(2)(b)3.
3. Spaces specifically designated for the following purposes:
252.15(2)(b)3.a.
a. The signature of the potential test subject or, if the potential test subject has executed a power of attorney for health care instrument under
ch. 155 and has been found to be incapacitated under
s. 155.05 (2), of the health care agent, providing informed consent for the testing and the date on which the consent is signed.
252.15(2)(b)3.b.
b. 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 under
ch. 155 and has been found to be incapacitated under
s. 155.05 (2), the health care agent, authorizes that disclosure of test results 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.
252.15(2)(bm)
(bm) The health care provider that subjects a person to a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV under
par. (a) 3. shall provide the test subject and the test subject's guardian, if the test subject is incompetent under
ch. 880, with all of the following information:
252.15(2)(bm)1.
1. A statement of explanation concerning the test that was performed, the date of performance of the test and the test results.
252.15(2)(bm)2.
2. A statement of explanation that the test results may be disclosed as specified under
sub. (5) (a) and either a listing that duplicates the persons or circumstances specified under
sub. (5) (a) 2. to
18. or a statement that the listing is available upon request.
252.15(3)
(3) Written consent to disclosure. A person who receives a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV under
sub. (2) (b) or, if the person has executed a power of attorney for health care instrument under
ch. 155 and has been found to be incapacitated under
s. 155.05 (2), the health care agent may authorize in writing a health care provider, blood bank, blood center or plasma center to disclose the person's test results to anyone at any time subsequent to providing informed consent for disclosure under
sub. (2) (b) and a record of this consent shall be maintained by the health care provider, blood bank, blood center or plasma center so authorized.
252.15(4)
(4) Record maintenance. A health care provider, blood bank, blood center or plasma center that obtains from a person a specimen of body fluids or tissues for the purpose of testing for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV shall:
252.15(4)(a)
(a) Obtain from the subject informed consent for testing or disclosure, as provided under
sub. (2).
252.15(4)(c)
(c) Maintain a record of the test results obtained. A record that is made under the circumstances described in
sub. (2) (a) 7m. may not reveal the identity of the test subject.
252.15(5)(a)(a) An individual who is the subject of a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV or the individual's health care agent, if the individual has executed a power of attorney for health care instrument under
ch. 155 and has been found to be incapacitated under
s. 155.05 (2), may disclose the results of the individual's test to anyone. A person who is neither the individual nor the individual's health care agent may not, unless he or she is specifically authorized by the individual to do so, disclose the individual's test results except to the following persons or under the following circumstances:
252.15(5)(a)1.
1. To the subject of the test and, if the test subject has executed a power of attorney for health care instrument under
ch. 155 and has been found to be incapacitated under
s. 155.05 (2), the health care agent.
252.15(5)(a)2.
2. To a health care provider who provides care to the test subject, including those instances in which a health care provider provides emergency care to the subject.
252.15(5)(a)3.
3. To an agent or employee of a health care provider under
subd. 2. who prepares or stores patient health care records, as defined in
s. 146.81 (4), for the purposes of preparation or storage of those records; provides patient care; or handles or processes specimens of body fluids or tissues.
252.15(5)(a)4.
4. To a blood bank, blood center or plasma center that subjects a person to a test under
sub. (2) (a), for any of the following purposes:
252.15(5)(a)4.a.
a. Determining the medical acceptability of blood or plasma secured from the test subject.
252.15(5)(a)5.
5. To a health care provider who procures, processes, distributes or uses a human body part donated as specified under
s. 157.06 (6) (a) or
(b), for the purpose of assuring medical acceptability of the gift for the purpose intended.
252.15(5)(a)6.
6. To the state epidemiologist or his or her designee, for the purpose of providing epidemiologic surveillance or investigation or control of communicable disease.
252.15(5)(a)7.
7. To a funeral director, as defined under
s. 445.01 (5) or to other persons who prepare the body of a decedent for burial or other disposition or to a person who performs an autopsy or assists in performing an autopsy.
