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.
252.15(5)(a)8.
8. To health care facility staff committees or accreditation or health care services review organizations for the purposes of conducting program monitoring and evaluation and health care services reviews.
252.15(5)(a)10.
10. To a person who conducts research, for the purpose of research, if the researcher:
252.15(5)(a)10.b.
b. Has obtained permission to perform the research from an institutional review board.
252.15(5)(a)10.c.
c. Provides written assurance to the person disclosing the test results that use of the information requested is only for the purpose under which it is provided to the researcher, the information will not be released to a person not connected with the study, and the final research product will not reveal information that may identify the test subject unless the researcher has first received informed consent for disclosure from the test subject.
252.15(5)(a)11.
11. To a person, including a person exempted from civil liability under the conditions specified under
s. 895.48, who renders to the victim of an emergency or accident emergency care during the course of which the emergency caregiver is significantly exposed to the emergency or accident victim, if a physician, based on information provided to the physician, determines and certifies in writing that the emergency caregiver has been significantly exposed and if the certification accompanies the request for disclosure.
252.15(5)(a)12.
12. To a coroner, medical examiner or an appointed assistant to a coroner or medical examiner, if one or more of the following conditions exist:
252.15(5)(a)12.a.
a. The possible HIV-infected status is relevant to the cause of death of a person whose death is under direct investigation by the coroner, medical examiner or appointed assistant.
252.15(5)(a)12.b.
b. The coroner, medical examiner or appointed assistant is significantly exposed to a person whose death is under direct investigation by the coroner, medical examiner or appointed assistant, if a physician, based on information provided to the physician, determines and certifies in writing that the coroner, medical examiner or appointed assistant has been significantly exposed and if the certification accompanies the request for disclosure.
252.15(5)(a)13.
13. To a sheriff, jailer or keeper of a prison, jail or house of correction or a person designated with custodial authority by the sheriff, jailer or keeper, for whom disclosure is necessitated in order to permit the assigning of a private cell to a prisoner who has a positive test result.
252.15(5)(a)14.
14. If the test results of a test administered to an individual are positive and the individual is deceased, by the individual's attending physician, to persons, if known to the physician, with whom the individual has had sexual contact or has shared intravenous drug use paraphernalia.
252.15(5)(a)15.
15. To anyone who provides consent for the testing under
sub. (2) (a) 4. b., except that disclosure may be made under this subdivision only during a period in which the test subject is adjudicated incompetent under
ch. 880, is under 14 years of age or is unable to communicate due to a medical condition.
252.15(5)(a)19.
19. If the test was administered to a child who has been placed in a foster home, treatment foster home, group home, residential care center for children and youth, or secured correctional facility, as defined in
s. 938.02 (15m), 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 secured 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 secured correctional facility in which the child is placed, as provided in
s. 48.371 or
938.371.
252.15(5)(a)20.
20. To a 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 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(5)(b)
(b) A private pay patient may deny access to disclosure of his or her test results granted under
par. (a) 10. if he or she annually submits to the maintainer of his or her test results under
sub. (4) (c) a signed, written request that denial be made.
252.15(5m)
(5m) Autopsies; testing of certain corpses. Notwithstanding
s. 157.05, a corpse may be subjected to a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV and the test results disclosed to the person who has been significantly exposed under any of the following conditions:
252.15(5m)(a)
(a) If a person, including a person exempted from civil liability under the conditions specified under
s. 895.48, who renders to the victim of an emergency or accident emergency care during the course of which the emergency caregiver is significantly exposed to the emergency or accident victim and the emergency or accident victim subsequently dies prior to testing for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV, and if a physician, based on information provided to the physician, determines and certifies in writing that the emergency caregiver has been significantly exposed and if the certification accompanies the request for testing and disclosure. Testing of a corpse under this paragraph shall be ordered by the coroner, medical examiner or physician who certifies the victim's cause of death under
s. 69.18 (2) (b),
(c) or
(d).
252.15(5m)(b)
(b) If a funeral director, coroner, medical examiner or appointed assistant to a coroner or medical examiner who prepares the corpse of a decedent for burial or other disposition or a person who performs an autopsy or assists in performing an autopsy is significantly exposed to the corpse, and if a physician, based on information provided to the physician, determines and certifies in writing that the funeral director, coroner, medical examiner or appointed assistant has been significantly exposed and if the certification accompanies the request for testing and disclosure. Testing of a corpse under this paragraph shall be ordered by the attending physician of the funeral director, coroner, medical examiner or appointed assistant who is so exposed.
252.15(5m)(c)
(c) If a health care provider or an agent or employee of a health care provider is significantly exposed to the corpse or to a patient who dies subsequent to the exposure and prior to testing for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV, and if a physician who is not the health care provider, based on information provided to the physician, determines and certifies in writing that the health care provider, agent or employee has been significantly exposed and if the certification accompanies the request for testing and disclosure. Testing of a corpse under this paragraph shall be ordered by the physician who certifies that the significant exposure has occurred.
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 test results prohibited. No person to whom the results of a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV have been disclosed under
sub. (5) (a) or
(5m) may disclose the test results except as authorized under
sub. (5) (a) or
(5m).
252.15(7)
(7) Reporting of positive 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 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 test result is obtained from a test subject, the health care provider, blood bank, blood center or plasma center that maintains a record of the test results 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 test subject.
252.15(7)(c)2.
2. The identity of persons with whom the 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 test result is obtained from a test subject, the test subject's physician who maintains a record of the test result under
sub. (4) (c) may report to the state epidemiologist the name of any person known to the physician to have been significantly exposed to the test subject, only after the physician has done all of the following:
252.15(7m)(a)
(a) Counseled the test subject to inform any person who has been significantly exposed to the test subject.
252.15(7m)(b)
(b) Notified the test subject that the name of any person known to the physician to have been significantly exposed to the test subject will be reported to the state epidemiologist.
252.15(8)(a)(a) Any person violating
sub. (2),
(5) (a),
(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 $1,000 for a negligent violation and up to $25,000 for an intentional violation.
252.15(9)
(9) Penalties. Whoever intentionally discloses the results of a blood test in violation of
sub. (2) (a) 7m.,
(5) (a) or
(5m) and thereby causes bodily harm or psychological harm to the subject of the test may be fined not more than $25,000 or imprisoned not more than 9 months or both. Whoever negligently discloses the results of a blood test in violation of
sub. (2) (a) 7m.,
(5) (a) or
(5m) is subject to a forfeiture of not more than $1,000 for each violation. Whoever intentionally discloses the results of a blood test in violation of
sub. (2) (a) 7m.,
(5) (a) or
(5m), knowing that the information is confidential, and discloses the information for pecuniary gain may be fined not more than $100,000 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.
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.
252.15 Annotation
Balancing Federal and Wisconsin Medical Privacy Laws. Hartin. Wis. Law. June 2003.
252.16
252.16
Health insurance premium subsidies.
