252.13
252.13
Blood tests for HIV. 252.13(1)(1) In this section, "autologous transfusion" means the receipt by an individual, by transfusion, of whole blood, blood plasma, a blood product or a blood derivative, which the individual has previously had withdrawn from himself or herself for his or her own use.
252.13(1m)
(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 with informed consent under the requirements of
s. 252.15 (2) (b), subject that blood, plasma, product or derivative to a 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 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.
252.13(1r)
(1r) For the purposes of this section, the state epidemiologist shall make separate findings of medical significance and sufficient reliability for a test or a series of tests to detect the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV for each of the following purposes:
252.13(1r)(a)
(a) Subjecting whole blood, blood plasma, a blood product or a blood derivative to a test prior to distribution or use of the whole blood, blood plasma, blood product or blood derivative.
252.13(1r)(b)
(b) Providing disclosure of test results to the subject of the test.
252.13(2)
(2) If performance of a test under
sub. (1m) yields a validated test result positive for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV, the whole blood, blood plasma, blood product or blood derivative so tested with this result may not be distributed or used except for purposes of research or as provided under
sub. (5).
252.13(3)
(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 testing under
sub. (1m) is unavailable, the requirement of
sub. (1m) shall not apply.
252.13(4)
(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 test whole blood, blood plasma, a blood product or a blood derivative.
252.13(5)
(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 test under
sub. (1m) and the test has yielded a negative result for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.
252.13 History
History: 1985 a. 73;
1987 a. 70;
1989 a. 201 ss.
9,
36;
1993 a. 27 ss.
325,
473; Stats. 1993 s. 252.13.
252.14
252.14
Discrimination related to acquired immunodeficiency syndrome. 252.14(1)(ar)
(ar) "Health care provider" means any of the following:
252.14(1)(ar)7.
7. A social worker, marriage and family therapist, or professional counselor certified or licensed under
ch. 457.
252.14(1)(ar)8.
8. A speech-language pathologist or audiologist licensed under
subch. II of ch. 459 or a speech and language pathologist licensed by the department of public instruction.
252.14(1)(ar)11.
11. A corporation of any provider specified under
subds. 1. to
8. that provides health care services.
252.14(1)(ar)12.
12. An operational cooperative sickness care plan organized under
ss. 185.981 to
185.985 that directly provides services through salaried employees in its own facility.
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. 45.50,
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;
2005 a. 22;
2007 a. 130.
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 juvenile correctional facility, as defined in
s. 938.02 (10p), or a secured residential care center for children and youth, as defined in
s. 938.02 (15g); 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 that is the subject of an anatomical gift under 157.06 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 in this state, 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 in this state; 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 juvenile correctional facility, as defined in
s. 938.02 (10p), or a secured residential care center for children and youth, as defined in
s. 938.02 (15g); 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 or advanced practice nurse prescriber, based on information provided to the physician or advanced practice nurse prescriber, 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 or advanced practice nurse prescriber, he or she may not make this determination or certification. The information that is provided to a physician or advanced practice nurse prescriber to document the occurrence of a significant exposure and the physician's or advanced practice nurse prescriber'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.
