252.15(5) (5)Confidentiality of test.
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)4.b. b. Notifying the test subject of the test results.
252.15(5)(a)4.c. c. Investigating HIV infections in blood or plasma.
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) (a) 1. or 2. or (c) 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)9. 9. Under a lawful order of a court of record except as provided under s. 901.05.
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.a. a. Is affiliated with a health care provider under subd. 3.
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, 895.4802, or 895.4803, 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 or advanced practice nurse prescriber, based on information provided to the physician or advanced practice nurse prescriber, determines and certifies in writing that the emergency caregiver has been significantly exposed and if the certification accompanies the request for disclosure.
252.15 Note NOTE: Subdiv. 11. is shown as affected by 2 acts of the Wisconsin legislature and as merged by the revisor under s. 13.93 (2) (c), stats.
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 or advanced practice nurse prescriber, based on information provided to the physician or advanced practice nurse prescriber, 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 or advanced practice nurse prescriber, to persons, if known to the physician or advanced practice nurse prescriber, 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 in this state, is under 14 years of age, or is unable to communicate due to a medical condition.
252.15(5)(a)17. 17. To an alleged victim or victim, to a health care professional, upon request as specified in s. 938.296 (4) (e) or (5) (e) or 968.38 (4) (c) or (5) (c), who provides care to the alleged victim or victim and, if the alleged victim or victim is a minor, to the parent or guardian of the alleged victim or victim, under s. 938.296 (4) or (5) or 968.38 (4) or (5).
252.15(5)(a)18. 18. To an affected person, under the requirements of sub. (2) (a) 7.
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 juvenile correctional facility, as defined in s. 938.02 (10p), 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 juvenile 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 juvenile 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, 895.4802, or 895.4803, 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; if a physician or advanced practice nurse prescriber, based on information provided to the physician or advanced practice nurse prescriber, 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 Note NOTE: Par. (a) is shown as affected by 2 acts of the Wisconsin legislature and as merged by the revisor under s. 13.93 (2) (c), stats.
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; if a physician or advanced practice nurse prescriber, based on information provided to the physician or advanced practice nurse prescriber, 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 or advanced practice nurse prescriber 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; if a physician or advanced practice nurse prescriber who is not the health care provider, based on information provided to the physician or advanced practice nurse prescriber, 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 or advanced practice nurse prescriber 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)4. 4. The date on which the test was performed.
252.15(7)(b)5. 5. The test result.
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 or advanced practice nurse prescriber 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 or advanced practice nurse prescriber to have been significantly exposed to the test subject, only after the physician or advanced practice nurse prescriber 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 or advanced practice nurse prescriber to have been significantly exposed to the test subject will be reported to the state epidemiologist.
252.15(8) (8)Civil liability.
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(8)(b) (b) The plaintiff in an action under par. (a) has the burden of proving by a preponderance of the evidence that a violation occurred under sub. (2), (5) (a), (5m), (6) or (7) (c). A conviction under sub. (2), (5) (a), (5m), (6) or (7) (c) is not a condition precedent to bringing an action under par. (a).
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; 2005 a. 155, 187, 266, 344, 387; s. 13.93 (2) (c).
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.
252.16(1) (1)Definitions. In this section:
252.16(1)(ar) (ar) "Dependent" means a spouse, an unmarried child under the age of 19 years, an unmarried child who is a full-time student under the age of 21 years and who is financially dependent upon the parent, or an unmarried child of any age who is medically certified as disabled and who is dependent upon the parent.
252.16(1)(b) (b) "Group health plan" means an insurance policy or a partially or wholly uninsured plan or program, that provides hospital, medical or other health coverage to members of a group, whether or not dependents of the members are also covered. The term includes a medicare supplement policy, as defined in s. 600.03 (28r), but does not include a medicare replacement policy, as defined in s. 600.03 (28p), or a long-term care insurance policy, as defined in s. 600.03 (28g).
252.16(1)(c) (c) "Individual health policy" means an insurance policy or a partially or wholly uninsured plan or program, that provides hospital, medical or other health coverage to an individual on an individual basis and not as a member of a group, whether or not dependents of the individual are also covered. The term includes a medicare supplement policy, as defined in s. 600.03 (28r), but does not include a medicare replacement policy, as defined in s. 600.03 (28p), or a long-term care insurance policy, as defined in s. 600.03 (28g).
252.16(1)(d) (d) "Medicare" has the meaning given in s. 49.498 (1) (f).
252.16(1)(e) (e) "Residence" means the concurrence of physical presence with intent to remain in a place of fixed habitation. Physical presence is prima facie evidence of intent to remain.
252.16(2) (2)Subsidy program. From the appropriation under s. 20.435 (5) (am), the department shall distribute funding in each fiscal year to subsidize the premium costs under s. 252.17 (2) and, under this subsection, the premium costs for health insurance coverage available to an individual who has HIV infection and who is unable to continue his or her employment or must reduce his or her hours because of an illness or medical condition arising from or related to HIV infection.
252.16(3) (3)Eligibility. An individual is eligible to receive a subsidy in an amount determined under sub. (4), if the department determines that the individual meets all of the following criteria:
252.16(3)(a) (a) Has residence in this state.
252.16(3)(b) (b) Has a family income, as defined by rule under sub. (6), that does not exceed 300% of the federal poverty line, as defined under 42 USC 9902 (2), for a family the size of the individual's family.
252.16(3)(c) (c) Has submitted to the department a certification from a physician, as defined in s. 448.01 (5), or advanced practice nurse prescriber of all of the following:
252.16(3)(c)1. 1. That the individual has an infection that is an HIV infection.
252.16(3)(c)2. 2. That the individual's employment has terminated or his or her hours have been reduced, because of an illness or medical condition arising from or related to the individual's HIV infection.
252.16(3)(dm) (dm) Has, or is eligible for, health insurance coverage under a group health plan or an individual health policy.
252.16(3)(e) (e) Authorizes the department, in writing, to do all of the following:
252.16(3)(e)1. 1. Contact the individual's employer or former employer or health insurer to verify the individual's eligibility for coverage under the group health plan or individual health policy and the premium and any other conditions of coverage, to make premium payments as provided in sub. (4) and for other purposes related to the administration of this section.
252.16(3)(e)1m. 1m. Contact the individual's employer or former employer to verify that the individual's employment has been terminated or that his or her hours have been reduced and for other purposes related to the administration of this section.
252.16(3)(e)2. 2. Make any necessary disclosure to the individual's employer or former employer or health insurer regarding the individual's HIV status.
252.16(4) (4)Amount and period of subsidy.
252.16(4)(a)(a) Except as provided in pars. (b) and (d), if an individual satisfies sub. (3), the department shall pay the full amount of each premium payment for the individual's health insurance coverage under the group health plan or individual health policy under sub. (3) (dm), on or after the date on which the individual becomes eligible for a subsidy under sub. (3). Except as provided in pars. (b) and (d), the department shall pay the full amount of each premium payment regardless of whether the individual's health insurance coverage under sub. (3) (dm) includes coverage of the individual's dependents. Except as provided in par. (b), the department shall terminate the payments under this section when the individual's health insurance coverage ceases or when the individual no longer satisfies sub. (3), whichever occurs first. The department may not make payments under this section for premiums for medicare.
252.16(4)(b) (b) The obligation of the department to make payments under this section is subject to the availability of funds in the appropriation under s. 20.435 (5) (am).
252.16(4)(d) (d) For an individual who satisfies sub. (3) and who has a family income, as defined by rule under sub. (6) (a), that exceeds 200% but does not exceed 300% of the federal poverty line, as defined under 42 USC 9902 (2), for a family the size of the individual's family, the department shall pay a portion of the amount of each premium payment for the individual's health insurance coverage. The portion that the department pays shall be determined according to a schedule established by the department by rule under sub. (6) (c). The department shall pay the portion of the premium determined according to the schedule regardless of whether the individual's health insurance coverage under sub. (3) (dm) includes coverage of the individual's dependents.
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This is an archival version of the Wis. Stats. database for 2005. See Are the Statutes on this Website Official?