252.15 Restrictions on use of an HIV test.

(1) Definitions. In this section:

(ac) “Authorized representative" means any of the following:

1. A health care agent, as defined under s. 155.01 (4), acting in accordance with a power of attorney for health care that is in effect under s. 155.05 (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.

3. A parent or legal custodian of a person who is under 14 years of age.

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.

(ad) “Correctional officer" has the meaning given in s. 301.28 (1).

(af) “Emergency medical services practitioner" has the meaning given in s. 256.01 (5).

(aj) “Fire fighter" has the meaning given in s. 102.475 (8) (b).

(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.

(ar) “Health care provider" means any of the following:

1. A person or entity that is specified in s. 146.81 (1) (a) to (hm) and (i) to (p).

2. A home health agency.

3. An employee of the Mendota Mental Health Institute or the Winnebago Mental Health Institute.

(cm) “Home health agency" has the meaning given in s. 50.49 (1) (a).

(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.

(em) “Significant exposure" means contact that carries a potential for a transmission of HIV, by one or more of the following:

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.

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.

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.

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.

(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.

(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.

(2m) Consent for HIV testing.

(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:

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.

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.

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.

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.

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.

(b) Paragraph (a) does not apply to any of the following:

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.

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.

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.

4. HIV testing in cases of significant exposure, as provided under sub. (5g) or (5j).

5. HIV testing of a donor of a human body part or human tissue that is required under s. 252.133.

(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).

(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.

(3m) Confidentiality and disclosure of HIV test results.

(a) The subject of an HIV test or the subject's authorized representative may disclose the results of the subject's test to anyone.

(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:

1. The name of the subject of the HIV test.

2. Specification of the information that may be disclosed.

3. The name of the person authorized to make the disclosure.

4. The name of the person to whom the disclosure is authorized.

5. The signature of the subject of the HIV test or the signature of the subject's authorized representative.

6. The date the authorization is signed as provided under subd. 5.

7. The time period during which the authorization for disclosure is effective.

(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).

(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:

1. To the subject of the HIV test and the subject's authorized representative.

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.

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.

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:

a. Determining the medical acceptability of blood or plasma secured from the subject of the HIV test.

b. Notifying the subject of the HIV test of the test results.

c. Investigating HIV infections in blood or plasma.

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.

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.

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.

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.

9. Under a lawful order of a court of record except as provided under s. 901.05.

10. Except as provided under par. (g), to a person who conducts research, for the purpose of research, if the researcher:

a. Is affiliated with a health care provider under subd. 2.

b. Has obtained permission to perform the research from an institutional review board.

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.

11. To a coroner, medical examiner, or an appointed assistant to a coroner or medical examiner, if one or more of the following applies:

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.

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.

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.

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.

14. To a person under s. 938.296 (4) (a) to (e) as specified in s. 938.296 (4); to a person under s. 938.296 (5) (a) to (e) as specified in s. 938.296 (5); to a person under s. 968.38 (4) (a) to (c) as specified in s. 968.38 (4); or to a person under s. 968.38 (5) (a) to (c) as specified in s. 968.38 (5).

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.

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).

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.

(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.

(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:

1. The subject of the test.

2. Anyone authorized by the subject of the test.

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.

(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.

(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.

(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:

(b) A record of whether the person or his or her authorized representative consented to or declined the HIV test under sub. (2m) (a).

(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).

(c) A record of the results of an HIV test administered to the person, except that results of an HIV test administered under sub. (5g) or (5j) or s. 938.296 (4) or (5) or 968.38 (4) or (5) that include the identity of the test subject may not be maintained without the consent of the test subject.

(5g) Significant exposure. A person who has contact with body fluid of an individual that constitutes a significant exposure may cause the individual to be subjected to HIV testing and receive the results of the HIV test under sub. (3m) (e) if all of the following apply:

(a) The contact occurred under one of the following circumstances:

1. The person is an emergency medical services practitioner; emergency medical 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 and the contact occurred during the course of the person providing care or services to the individual.

2. The person is 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 and the contact occurred while the person was searching or arresting the individual or while controlling or transferring the individual in custody.

3. The person is a health care provider or an employee of a health care provider and the contact occurred during the course of the person providing care or treatment to the individual or handling or processing specimens of body fluids or tissues of the individual.

4. The person is a staff member of a state crime laboratory and the contact occurred during the course of the person handling or processing specimens of body fluids or tissues of the individual.

5. The person is a social worker or an employee of a school district, cooperative educational service agency, charter school, private school, tribal school, as defined in s. 115.001 (15m), the Wisconsin Educational Services Program for the Deaf and Hard of Hearing, or the Wisconsin Center for the Blind and Visually Impaired and the contact occurred while the person was performing employment duties involving the individual.

6. While the person rendered emergency care at the scene of an emergency or accident, if the person is immune from civil liability for rendering the care under s. 895.48 or 895.4802 (2).

(b) If the contact occurs as provided under par. (a) 1. to 5., the entity that employs or contracts with the person to provide the services described under par. (a) 1. to 5. requires, as a general policy, that standard precautions against significant exposure be taken during provision of the services, except in those emergency circumstances in which the time necessary for use of the standard precautions would endanger the life of the individual.

(c) 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 person has had contact that constitutes a significant exposure. The certification shall accompany the request for HIV testing and disclosure. If the person is a physician, physician assistant, or advanced practice nurse prescriber, he or she may not make this determination or certification. The information that is provided to a physician, physician assistant, or advanced practice nurse prescriber to document the occurrence of the contact that constitutes a significant exposure and the physician's, physician assistant's, or advanced practice nurse prescriber's certification that the person has had contact that constitutes a significant exposure, shall be provided on a report form that is developed by the department of safety and professional services under s. 101.02 (19) (a) or on a report form that the department of safety and professional services determines, under s. 101.02 (19) (b), is substantially equivalent to the report form that is developed under s. 101.02 (19) (a).

(d) The person submits to an HIV test 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.

(e) Except as provided in sub. (5j), the HIV test is performed on blood of the individual that is drawn for a purpose other than HIV testing.

(f) The individual has been given an opportunity to be subjected to an HIV test in accordance with the conditions under sub. (2m) (a) and has declined.

(g) The individual has been informed of all of the following:

1. That an HIV test may be performed on his or her blood.

2. That the HIV test results may be disclosed to the person and the person's physician, physician assistant, or nurse.

3. That, except as provided in subd. 2., the HIV test may not be disclosed to any person.

4. That, if the person knows the identity of the individual, the person may not disclose the identity to any other person except for the purpose of having the HIV test performed.

5. That a record may be kept of the HIV test results only if the record does not reveal the individual's identity.

(5j) Court order for HIV testing.

(a) A person who may cause an individual to be subjected to HIV testing under sub. (5g) may request the district attorney to apply to the circuit court for his or her county to order the individual to submit to an HIV test if no blood of the individual that was drawn for a purpose other than HIV testing is available for HIV testing. A person making a request to a district attorney under this paragraph shall provide the district attorney the certification under sub. (5g) (c).

(b) Upon receipt of a request and certification under par. (a), 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 an HIV test administered by a health care professional.

(c) The court shall set a time for a hearing on the matter under this subsection within 20 days after receipt of a request under par. (b). The court shall give the district attorney and the individual from whom an HIV 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 person who requested a court order for testing has had contact with body fluid of the individual that constitutes a significant exposure, the court shall, except as provided in par. (d), order the individual to submit to an HIV test. No sample used for laboratory test purposes under this paragraph may disclose the name of the HIV test subject.

(d) The court is not required to order an individual to submit to an HIV test under par. (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.

(5m) Autopsies; HIV testing of certain corpses.

(d) Notwithstanding s. 157.05, a corpse may be subjected to an HIV test and the test results disclosed to a person who has contact that constitutes a significant exposure with body fluid of the corpse or an individual who subsequently dies, if all of the following apply:

1. The contact occurs under any of the following circumstances:

a. While the person, including a person exempted from civil liability under the conditions specified under s. 895.48 or 895.4802 (2) renders emergency care to an emergency or accident victim and the victim subsequently dies prior to performance of an HIV test on the victim.

b. The person is a funeral director, coroner, medical examiner, or appointed assistant to a coroner or medical examiner and the contact occurs while the person prepares the corpse for burial or other disposition or while the person performs an autopsy or assists in performing an autopsy on the corpse.

c. The person is a health care provider or an agent or employee of a health care provider and the person has contact with body fluid of the corpse, or of a patient who dies subsequent to the contact and prior to performance of an HIV test on the patient.

2. 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 contact under subd. 1. constitutes a significant exposure. A health care provider who has a contact under subd. 1. c. may not make the certification under this subdivision for himself or herself.

3. The certification under subd. 2. accompanies the request for performance of an HIV test and disclosure.

(e) If the conditions under par. (d) are satisfied, the following person shall order an HIV test of the corpse:

1. If the contact occurs as provided under par. (d) 1. a., the coroner, medical examiner, or physician who certifies the victim's cause of death under s. 69.18 (2) (b), (c), or (d).

2. If the contact occurs as provided under par. (d) 1. b., the attending physician, physician assistant, or advanced practice nurse prescriber of the funeral director, coroner, medical examiner, or appointed assistant.

3. If the contact occurs as provided under par. (d) 1. c., the physician, physician assistant, or advanced practice nurse prescriber who makes the certification under par. (d) 2.

(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.

(6) Expanded disclosure of HIV test results prohibited. No person to whom the results of an HIV test have been disclosed under sub. (3m) (a), (b), (d), or (e) or (5m) may disclose the test results except as authorized under sub. (3m) (a), (b), (d), or (e) or (5m).

(7) Reporting of positive HIV test results.

(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 HIV 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).

(b) If a positive, validated HIV test result is obtained from an HIV test subject, the health care provider, blood bank, blood center, or plasma center that maintains a record of the HIV test result under sub. (4) (c) shall report to the state epidemiologist the following information:

1. The name and address of the health care provider, blood bank, blood center or plasma center reporting.

2. The name and address of the subject's health care provider, if known.

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.

4. The date on which the HIV test was performed.

5. The HIV test result.

5m. The mode of transmission of HIV to the test subject.

6. Any other medical or epidemiological information required by the state epidemiologist for the purpose of exercising surveillance, control and prevention of HIV infections.

(c) Except as provided in sub. (7m), a report made under par. (b) may not include any of the following:

1. Information with respect to the sexual orientation of the HIV test subject.

2. The identity of persons with whom the HIV test subject may have had sexual contact.

(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.

(7m) Reporting of persons significantly exposed. If a positive, validated HIV test result is obtained from a test subject, the test subject's physician, physician assistant, or advanced practice nurse prescriber who maintains a record of the HIV test result under sub. (4) (c) may report to the state epidemiologist the name of any person known to the physician, physician assistant, or advanced practice nurse prescriber to have had contact with body fluid of the test subject that constitutes a significant exposure, only after the physician, physician assistant, or advanced practice nurse prescriber has done all of the following:

(a) Counseled the HIV test subject to inform any person who has had contact with body fluid of the test subject that constitutes a significant exposure.

(b) Notified the HIV test subject that the name of any person known to the physician, physician assistant, or advanced practice nurse prescriber to have had contact with body fluid of the test subject that constitutes a significant exposure will be reported to the state epidemiologist.

(7r) Explanation of HIV for test subjects. The department shall provide to health care providers, blood banks, blood centers, and plasma centers a brief explanation or description of all of the following that a health care provider, blood bank, blood center, or plasma center may provide prospective HIV test subjects under sub. (2m) (a) 2.:

(a) HIV infection.

(b) HIV test results.

(c) Requirements under subs. (7) (b) and (7m) for reporting HIV test results.

(d) Treatment options for a person who has a positive HIV test result.

(e) 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.

(8) Civil liability.

(a) Any person violating sub. (2m), (3m) (b), (d), or (f), (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 $2,000 for a negligent violation and up to $50,000 for an intentional violation.

(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. (2m), (3m) (b), (d), or (f), (5m), (6) or (7) (c). A conviction under sub. (2m), (3m) (b), (d), or (f), (5m), (6) or (7) (c) is not a condition precedent to bringing an action under par. (a).

(9) Penalties. Whoever intentionally discloses the results of an HIV test in violation of sub. (3m) (b) or (f) or (5m) and thereby causes bodily harm or psychological harm to the subject of the HIV test may be fined not more than $50,000 or imprisoned not more than 9 months or both. Whoever negligently discloses the results of an HIV test in violation of sub. (3m) (b) or (f) or (5m) is subject to a forfeiture of not more than $2,000 for each violation. Whoever intentionally discloses the results of an HIV test in violation of sub. (3m) (b) or (f) or (5m), knowing that the information is confidential, and discloses the information for pecuniary gain may be fined not more than $200,000 or imprisoned not more than 3 years and 6 months, or both.

(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.

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; 2007 a. 97, 106, 130; 2009 a. 28, 209, 302, 355; 2011 a. 32; 2011 a. 260 ss. 42 to 44, 81; 2013 a. 334; 2015 a. 197 s. 51; 2017 a. 12.

No claim for a violation of s. 146.025, 1987 stats., 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).

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).

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).

Confidentiality of Medical Records. Meili. Wis. Law. Feb. 1995.

HIV Confidentiality: Who Has the Right to Know? Krimmer. Wis. Law. Feb. 2003.

Balancing Federal and Wisconsin Medical Privacy Laws. Hartin. Wis. Law. June 2003.