252.14(3)
(3) 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 $10,000 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;
2009 a. 165,
209;
2011 a. 161.
252.15
252.15
Restrictions on use of an HIV test. 252.15(1)(ac)
(ac) "Authorized representative" means any of the following:
252.15(1)(ac)2.
2. A person named by the court under
ch. 48 or
54 or ch.
880, 2003 stats., having the duty and authority of guardianship.
252.15(1)(ac)3.
3. A parent or legal custodian of a person who is under 14 years of age.
252.15(1)(ac)4.
4. For a person who is unable to communicate due to a medical condition, the person's closest living relative or another individual with whom the person has a meaningful social and emotional relationship.
252.15(1)(am)
(am) "Health care professional" means a physician or physician assistant 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)3.
3. An employee of the Mendota Mental Health Institute or the Winnebago Mental Health Institute.
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) "Significant exposure" means contact that 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) "Standard 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(2m)(a)(a) Except as provided in
par. (b), and subject to
par. (c), a health care provider, blood bank, blood center, or plasma center may not subject a person to an HIV test unless all of the following conditions are satisfied:
252.15(2m)(a)1.
1. The health care provider, blood bank, blood center, or plasma center notifies the person or the person's authorized representative that the person will be subjected to an HIV test unless the person or the person's authorized representative declines the test.
252.15(2m)(a)2.
2. The health care provider, blood bank, blood center, or plasma center offers the person or the person's authorized representative a brief oral or written explanation or description of HIV infection; HIV test results; requirements under
subs. (7) (b) and
(7m) for reporting HIV test results; treatment options for a person who has a positive HIV test result; and services provided by AIDS service organizations, as defined in
s. 252.12 (1) (b), and other community-based organizations for persons who have a positive HIV test result.
252.15(2m)(a)3.
3. If a health care provider offers to perform an HIV test, the health care provider notifies the person or the person's authorized representative that the person or the person's authorized representative may decline the HIV test and that, if the person or the person's authorized representative declines the HIV test, the health care provider may not use the fact that the person declined an HIV test as a basis for denying services or treatment, other than an HIV test, to the person.
252.15(2m)(a)4.
4. The health care provider, blood bank, blood center, or plasma center provides the person or the person's authorized representative an opportunity to ask questions and to decline the HIV test.
252.15(2m)(a)5.
5. After complying with applicable conditions under
subds. 1. to
4., the health care provider, blood bank, blood center, or plasma center verifies that the person or the person's authorized representative understands that an HIV test will be performed on the person and that the decision of the person or the person's authorized representative regarding whether to have an HIV test performed is not coerced or involuntary.
252.15(2m)(b)1.
1. HIV testing of any body fluid or tissue that is performed by the department, a laboratory certified under
42 USC 263a, or a health care provider, blood bank, blood center, or plasma center for the purpose of research, 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(2m)(b)2.
2. HIV testing of a resident or patient 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), if the medical director of the center or institute 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 and if the medical director provides the resident or patient, or the resident's or patient's guardian, an explanation of the HIV test result.
252.15(2m)(b)3.
3. HIV testing by a health care professional acting under an order of the court under
sub. (5j) or
s. 938.296 (4) or
(5) or
968.38 (4) or
(5). No sample used for laboratory test purposes under this subdivision may disclose the name of the HIV test subject, and the HIV test results may not be made part of the individual's permanent medical record.
252.15(2m)(b)5.
5. HIV testing of a donor of a human body part or human tissue that is required under
s. 252.133.
252.15(2m)(c)
(c) If the subject of an HIV test is a minor who is 14 years of age or older, a health care provider, blood bank, blood center, or plasma center shall provide the notifications and offer the information under
par. (a) 1. to
4. to the minor or his or her authorized representative, and only the minor or his or authorized representative may consent to or decline an HIV test under
par. (a).
252.15(2r)
(2r) Prohibition against conditioning HIV testing on disclosure. A health care provider may not require a person to authorize disclosure of HIV test results as a condition of administering an HIV test to the person.
252.15(3m)
(3m) Confidentiality and disclosure of HIV test results. 252.15(3m)(a)(a) The subject of an HIV test or the subject's authorized representative may disclose the results of the subject's test to anyone.
252.15(3m)(b)
(b) Except as provided under
par. (d) or
(e), a person who is neither the subject of the HIV test nor the subject's authorized representative may not disclose the subject's HIV test results unless the subject of the HIV test or his or her authorized representative has signed authorization for the disclosure that contains all of the following:
252.15(3m)(b)3.
3. The name of the person authorized to make the disclosure.
252.15(3m)(b)4.
4. The name of the person to whom the disclosure is authorized.
252.15(3m)(b)5.
5. The signature of the subject of the HIV test or the signature of the subject's authorized representative.
252.15(3m)(b)7.
7. The time period during which the authorization for disclosure is effective.
252.15(3m)(c)
(c) If the subject of an HIV test is a minor who is 14 years of age or older, only the minor or his or her authorized representative may exercise the test subject's authority to disclose HIV test results under
par. (a) or to authorize disclosure of HIV test results under
par. (b).
252.15(3m)(d)
(d) Except as provided under
par. (f), a person who is neither the subject of an HIV test nor the subject's authorized representative may without written authorization from the test subject or authorized representative under
par. (b) disclose the subject's HIV test results to the following persons under the following circumstances:
252.15(3m)(d)1.
1. To the subject of the HIV test and the subject's authorized representative.
252.15(3m)(d)2.
2. To a health care provider who provides care to the subject of the HIV test, including those instances in which a health care provider provides emergency care to the subject.
252.15(3m)(d)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(3m)(d)4.
4. To a blood bank, blood center, or plasma center that subjected the test subject to an HIV test for any of the following purposes:
252.15(3m)(d)4.a.
a. Determining the medical acceptability of blood or plasma secured from the subject of the HIV test.
252.15(3m)(d)5.
5. To a health care provider who procures, processes, distributes or uses a human body part that is the subject of an anatomical gift under
s. 157.06, for the purpose of assuring medical acceptability of the gift for the purpose intended.
252.15(3m)(d)6.
6. To the state epidemiologist or his or her designee, or to a local health officer or his or her designees, for the purpose of providing epidemiologic surveillance or investigation or control of communicable disease.
252.15(3m)(d)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 the subject of the HIV test for burial or other disposition or to a person who performs an autopsy, or assists in performing an autopsy, on the subject of the HIV test.
252.15(3m)(d)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(3m)(d)10.
10. Except as provided under
par. (g), to a person who conducts research, for the purpose of research, if the researcher:
252.15(3m)(d)10.b.
b. Has obtained permission to perform the research from an institutional review board.
252.15(3m)(d)10.c.
c. Provides written assurance to the person disclosing the HIV 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(3m)(d)11.
11. To a coroner, medical examiner, or an appointed assistant to a coroner or medical examiner, if one or more of the following applies:
252.15(3m)(d)11.a.
a. The coroner, medical examiner, or an appointed assistant is investigating the cause of death of the subject of the HIV test and possible HIV-infected status is relevant to the cause of death.
252.15(3m)(d)11.b.
b. The coroner, medical examiner, or appointed assistant is investigating the cause of death of the subject of the HIV test and has contact with the body fluid of the subject of the HIV test that constitutes a significant exposure, if a physician, physician assistant, or advanced practice nurse prescriber, based on information provided to the physician, physician assistant, or advanced practice nurse prescriber, determines and certifies in writing that the coroner, medical examiner, or appointed assistant has had a contact that constitutes a significant exposure and if the certification accompanies the request for disclosure.
252.15(3m)(d)12.
12. 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 HIV test result.
252.15(3m)(d)13.
13. If the subject of the HIV test has a positive HIV test result and is deceased, by the subject's attending physician, physician assistant, or advanced practice nurse prescriber, to persons, if known to the physician, physician assistant, or advanced practice nurse prescriber, with whom the subject had sexual contact or shared intravenous drug use paraphernalia.
252.15(3m)(d)15.
15. If the subject of the HIV test is a child who has been placed in a foster home, group home, residential care center for children and youth, or juvenile correctional facility, as defined in
s. 938.02 (10p), or in a supervised independent living arrangement, including a placement under
s. 48.205,
48.21,
938.205, or
938.21, or for whom placement in a foster home, group home, residential care center for children and youth, or juvenile correctional facility or in a supervised independent living arrangement 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 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(3m)(d)16.
16. If the subject of the HIV test is a prisoner, to the 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 HIV 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(3m)(d)17.
17. If the subject of the HIV test is a prisoner, by a person specified in
subd. 16. to a correctional officer of the department of corrections who has custody of or is responsible for the supervision of the test subject, to a person designated by a jailer to have custodial authority over the test subject, or to a law enforcement officer or other person who is responsible for transferring the test subject to or from a prison or jail, if the HIV test result is positive and disclosure of that information is necessary for the health and safety of the test subject or of other prisoners, of the person to whom the information is disclosed, or of any employee of the prison or jail.
252.15(3m)(e)
(e) The health care professional who performs an HIV test under
sub. (5g) or
(5j) on behalf of a person who has contact with body fluids of the test subject that constitutes a significant exposure shall disclose the HIV test results to the person and the person's physician, physician assistant, or nurse.
252.15(3m)(f)
(f) The results of an HIV test of an individual that is performed under
sub. (5g) or
(5j) may be disclosed only to the following:
252.15(3m)(f)3.
3. The person who was certified to have had contact that constitutes a significant exposure and to that person's physician, physician assistant, or nurse.
252.15(3m)(g)
(g) A person who was certified to have had contact with body fluid of an individual that constitutes a significant exposure and has the individual's blood subjected to an HIV test under
sub. (5g) or
(5j) may not disclose the identity of the test subject to any other person except for the purpose of having the HIV test performed.
252.15(3m)(h)
(h) A private pay patient may prohibit disclosure of his or her HIV test results under
par. (d) 10. if he or she annually submits to the maintainer of his or her HIV test results under
sub. (4) (c) a signed, written request that disclosure be prohibited.
252.15(4)
(4) Record maintenance. A health care provider, blood bank, blood center, or plasma center that obtains a specimen of body fluids or tissues from a person for the purpose of an HIV test, or offers to subject a person to an HIV test, shall maintain in the person's health care record all of the following:
252.15(4)(b)
(b) A record of whether the person or his or her authorized representative consented to or declined the HIV test under
sub. (2m) (a).
252.15(4)(bm)
(bm) A record of any authorization for disclosure of HIV test results that the person or his or her authorized representative has made as provided under
sub. (3m) (b).
