Restrictions on use of an HIV test – Wis. Stat. Ann. § 252.15

Informed Consent

Health care providers, blood banks, and plasma centers (“providers”) must take the following actions prior to administering an HIV test:

• Notify a person or their representative that they will be tested for HIV unless they decline the test.
• Give the person or their representative “a brief oral or written explanation or description of HIV infection, HIV test results,” HIV reporting obligations, treatments for HIV, and AIDS service organization services.
• Give the person or their representative a chance to ask questions about the test.
• Verify that the person understands that they will receive an HIV test and that the test was not “coerced or involuntary.”

Providers do not need to perform the above actions before administering an HIV test if:

• The test is performed on bodily fluid or tissue for research purposes and the researcher does not know the identity of the person that provided the sample.
• The test is performed on a resident of a developmentally disabled center or mental health institute who, because of their conduct, creates a “significant risk of transmitting HIV” to another person. The medical director must explain the results of the HIV test to the resident or their guardian.
• The test is performed pursuant to a court order. The results of these tests cannot be placed in the test subject’s permanent medical record.
• The test is performed in relation to “significant exposure.”
• The test is performed on an anatomical gift.

Minors that are 14 or older or their representative may consent to HIV testing after receiving the required notifications from providers.

A provider may not refuse to provide services to a person based on the person’s refusal to submit to an HIV test.

Confidentiality

HIV test results are confidential. Test subjects or their representatives may disclose their results as they wish. Other persons may disclose the test results if they obtain the proper written authorization from the test subject may disclose the test results without authorization to the following persons or entities or under the following circumstances:

• The test subject and their representative.
• Health care providers that care for the test subject and any of their employees that handle medical records or bodily fluid and tissue samples as part of their official duties.
• Blood banks, blood centers, or plasma centers so they may determine the acceptability of blood or plasma taken from the test subject or notify the test subject of their results.
• Health care providers that process, use or distribute human body parts for anatomical gifts so they may determine the fitness of the gift. 
• The state epidemiologist and local health officers in order to conduct HIV surveillance and investigations.
• Funeral directors or other persons that prepare a body for burial or perform an autopsy.
• Health care facility staff committees, accreditation review organizations or health care services review organizations related if they need the results to carry out their monitoring, evaluation, and review functions.
• Pursuant to a court order. HIV test results and the fact that a person took an HIV test are generally inadmissible in civil and criminal trials.
• Researchers that are affiliated with a health care provider, have their study authorized by an institutional review board, and assure the disclosing party, in writing, that they will only use the HIV results for research purposes, will release the results to persons not conducting the study, and will not publish identifying information without the consent of the test subject. Persons that privately pay for their care may request, in writing, that the holder of their medical records abstain from disclosing their HIV results for research purposes.
• Coroners and medical examiners if (1) they are investigating the death of a person tested for HIV and HIV is potentially related to the cause of death or (2) they are exposed to the bodily fluid of a person tested for HIV during the course of their investigation and a health care provider certifies in writing that the exposure constitutes a “significant exposure.”
• Sheriffs, jailers, and other correctional facility personnel that need the information to assign a prisoner with HIV to a separate cell.
• Persons known by a physician or advanced practice nurse to have had sexual contact or shared needles with an HIV positive individual that is now deceased.
• The parents or legal guardians of juveniles accused tested in relation to accusations of assault and to defendants tested in relation to accusations of assault.
• Child welfare agencies, foster parents, group homes and juvenile correctional facilities may obtain the results of a child’s HIV test in relation to the placement of a child in care outside of their home or the creation of a court report or permanency plan.
• Prison health care providers and medical staff.
• Correctional officers and other persons with custody of a prisoner may access the prisoner’s HIV test results if necessary for the health or the prisoner, other prisoners or prison or jail employees.  

Record Maintenance

Health care providers, blood banks, blood centers, and plasma centers that collect fluid for HIV testing or offer to provide HIV test must note in an individuals’ medical record whether the individual consented to HIV testing and whether the individual authorized disclosure of their HIV test results. An individual’s HIV test results must also be placed in their medical record unless the test arose as the result of a “significant exposure” or was ordered by a court in relation to a charge of sexual assault.

Significant Exposure

Emergency medical personnel, law enforcement officials, fire fighters, social workers, health care providers, and crime lab employees that come into contact with a person’s bodily fluids while performing their duties may cause the person to undergo HIV testing and obtain the results of such testing if:

• A physician or advanced nurse practitioner determines that the contact with the bodily fluid constituted a “significant exposure.”
• Unless the contact occurred during an emergency situation, The individual requesting the test took standard precautions against exposure. This requirement does not apply if the individual could not take precautions against exposure because they were trying to save the person’s life during an emergency situation.
• The test occurs as soon as possible or during a time period set by the department of health services.
• Unless authorized by a court, the test is conducted an existing sample of the person’s blood rather than a new sample drawn specifically for the HIV test.
• The person declined an opportunity to submit to a voluntary HIV test.
• The person is informed that their blood may be tested for HIV, the results of the HIV test will only be disclosed to the individual that requested the test, a health care provider designated by the requesting individual, the test subject, and any health care provider they choose to designate. The person must also be informed that the requesting individual may only disclose the person’s identity in order to obtain the HIV testing and that any record of the HIV test results will not contain their identity.

Health care professionals that perform a significant exposure test must disclose the results to the person that requested the test and the test subject. The person that requested the test, their chosen health care provider, the subject of the test, and persons designated by the subject of the test are the only individuals that may access the results of the test (3m)(e)(f). Persons that have “significant exposure” to the bodily fluid of a test subject may only disclose the test subject’s identity in order to obtain an HIV test.  

Emergency medical personnel, law enforcement officials, fire fighters, social workers, health care providers, and crime lab employees that have significant exposure to a person’s bodily fluid may seek a court order to compel the person to undergo HIV testing if there is no independent sample of the person’s blood available for testing. A circuit court must conduct a hearing on the issue and may order the blood testing if they determine that there is probable cause that a significant exposure occurred. A blood sample taken pursuant to a court order cannot contain the person’s identifying information.

Autopsies

A copse may be tested for HIV if (1) an individual provided emergency care to a person and that person dies before they receive an HIV test; (2) a medical examiner, funeral director, or other authorized person is exposed while preparing a corpse for burial or performing an autopsy; or (3) a health care provider or their employee has contact with a patient who dies before an HIV test is performed and a health care provider certifies that the contact in any of these situations constituted a significant exposure.

Reporting

For every positive HIV test result obtained, health providers, blood banks, blood centers, and plasma centers must report the following information to the state epidemiologist:

• The provider or facility’s name and address.
• The test subject’s health care provider’s name and address, if known.
• Name, address, telephone number, age or date of birth, race and ethnicity, sex and county of residence of the test subject.
• The test date.
• The test results and the means of transmission to the test subject.
• Any other information specified by the epidemiologist for use in surveillance, control, and prevention efforts.

Reports to the state epidemiology may not include the test subject’s sexual orientation or the identity of the test subject’s sex partners.

Physicians or other health care providers may report the identity of any individual they know to have been in contact with the bodily fluid of a test subject that is positive for HIV so long as they counsel the test subject to inform these persons of their positive status and inform the test subject of their ability to report such information to the state epidemiologist.

Penalties

Persons that violate the requirements of this section may be held liable for the actual damages caused by their violation, attorney’s fees, and punitive damages. Persons that intentional disclose the results of HIV tests may also be subject to fines of up to $200,000 and imprisonment for up to 3 and a half years. State employees that violate this section may be fired or suspended without pay.