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Resources for Clinicians
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Frequently Asked Questions Pertaining to HIV Testing, Disclosure,
and Significant Exposure in Health Care Settings
On April 21, 2010, 2009
Wisconsin Act 209 was signed into law. Act 29 updated Wisconsin statutes related to HIV and
AIDS and, among other things, eliminated the requirement for written
informed consent for HIV testing by replacing it with a verbal consent
process. Act 209 also modernizes Wisconsin statutes by revising laws
related to disclosure of test results and significant exposure. This
document provides answers to questions concerning statutory revisions
implemented through this Act and other common questions concerning the
HIV statutes detailed in Chapter
252 - Wisconsin's Communicable Diseases statutes.
A. Questions on Informed Consent
B. Questions on Disclosure of HIV Test Results
C. Questions on Significant Exposure
A. Questions on Informed Consent
A.1: What are the steps health care providers
must take in order to obtain verbal consent for HIV testing in health care
settings?
Wisconsin law [s. 252.15 (2m) (a)] requires that a health care
provider:
1. indicates to the patient that HIV testing will be done unless the
patient declines;
2. offers written or verbal information on HIV (see
sample fact sheets), including
- the meaning of HIV test results;
- disease reporting requirements;
- treatment options; and
- services provided by AIDS services organizations and other
community organizations for persons who have a positive result;
3. informs the patient that the patient may decline the test, and
that if the patient declines HIV testing, the health care provider may
not use this fact as a basis to deny services or treatment to the patient;
4. provides an opportunity for the patient to ask questions or
decline testing;
5. verifies that the patient understands that testing will occur and
that this testing is voluntary.
Additionally, s.252.15(4) requires that the consent or declination of
consent must be recorded in the patient's medical record.
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A.2: Must the consent process be conducted by a
physician?
No. The consent process can be conducted by another health care
provider who is delegated responsibility for obtaining consent for
testing.
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A.3: To meet the requirements for consent, can
a patient simply indicate whether they want an HIV test by marking a
yes/no checkbox on an intake form?
No. The steps listed in the consent process (see
response to Question 1 above) must be conducted to obtain consent --
i.e., information must be offered and an opportunity given for the patient
to ask questions or decline the test. However, if a provider wants to use
a checkbox on a form to identify patients that are interested in HIV
testing, the provider can do so. The full verbal consent process must be
done with that patient prior to testing.
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A.4: Can the informed consent steps #2 and #3
listed in response to Question 1 above be combined in a written fact sheet
that is given to the patient?
Yes, but the statutes emphasize the information in Step 3 - which
indicates that the patient may decline the HIV test and that the provider
cannot deny other health care services or treatment based on this refusal.
It is best to provide Step 3 verbally.
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A.5: Can the consent process be handled over
the phone?
Yes, as long as all the steps listed in response Question
A.1 above are covered.
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A.6: Can a provider continue to conduct written
informed consent instead of verbal consent?
Yes. However, the provider must also provide the required information
outlined in steps 2 and 3 of the informed consent process (listed
in response to Question A.1 above), and allow an opportunity for the
patient to ask questions. The signed consent form can be used as
documentation of consent in the patient's medical record.
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A.7: Is the informed consent process required
for repeated HIV testing for clinical evaluations (e.g., periodic viral
load testing)?
No. The informed consent process is only required for diagnostic HIV
testing. Once the patient is aware of their infection, informed consent is
not required for HIV testing that is conducted to monitor the disease.
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A.8: How can consent or declination of consent
for HIV testing be documented?
The provider can document it through a progress note in the record.
A checkbox can be created in an electronic medical record or on a paper
form through which the provider checks whether the patient consented or
declined the test.
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A.9: Must providers document the type of
information offered to the patient?
Providers are only statutorily required to document whether the patient
consented or declined testing. Some providers may elect to document
additional information. An agency's established policies and procedures
should substantiate what is covered under verbal informed consent.
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B. Questions on Disclosure of HIV Test Results
B.1: Do providers report HIV positive test
results to the Wisconsin Department of Health Services or the local health
department?
Case
report forms should be submitted to the Wisconsin AIDS/HIV Program
Director at the Wisconsin Department of Health Services.
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B.2: Is an "Authorization for
Disclosure" form signed by the patient required prior to reporting an
HIV positive test result to the Wisconsin Department of Health Services?
No. Because reporting HIV positive test results is statutorily required
of health care providers, a patient's signed authorization for disclosure
is not needed.
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B.3: Can providers release information
regarding an HIV positive patient to an official local health department
requesting this information?
Yes. The federal Health Insurance Portability and Accountability Act (HIPAA)
privacy rule permits covered entities to disclose an individual's
protected health information, without the individual's authorization, to
public health authorities that by law collect or receive such information
for the prevention or control of disease.
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C. Questions on Significant Exposure
C.1: Can a provider ask a patient to consent to
HIV testing prior to surgery in the event that a significant exposure may
occur during or following surgery? A blood specimen would most likely be
obtained before the patient was conscious or coherent.
Yes. This is acceptable as long as the provider conducts the entire
verbal consent process prior to surgery.
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C.2: If a patient was the source of a
significant exposure and leaves the hospital but cannot be located (no
phone, no e-mail, and no address), can their blood be tested without their
consent?
No. This is not permissible under the current state statutes.
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C.3: Wisconsin law [s. 252.15 (3m)(e)] states
that a health care professional who performs an HIV test on behalf of
someone who is significantly exposed shall disclose the results to the
person and their physician, physician's assistant, or nurse. Is the health
care professional who performs the test required to release the exposed
person's result to their provider? What if the exposed person does not
want their test result released?
This particular passage of state law refers to the provider releasing
the source patient's result to the exposed person and their provider when
the source does not consent and HIV test result is performed on already
existing blood or due to a court order.
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C.4: If there is an HIV test result already in
the medical record of a patient who is the source of a significant
exposure, can a provider disclose that result it to the exposed person
without an "Authorization for Disclosure?"
If the exposed person is the patient's health care provider, that
person already has access to the test result and an authorization is not
necessary. However, if the exposed person is not their health care
provider, an "Authorization for Disclosure" must be signed by
the patient prior to release of the test results. In both cases, Employee
Health should be involved and should be the entity that releases the
results.
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C.5: A source patient declines testing, their
blood is tested under the significant exposure provisions, and the test
result is positive. Can this test result be reported to the State?
No. This is not allowed under state law [s. 252.15(5g) and (5j)].
However, the provider should request that the patient who was the source
of the significant exposure accept their test result and the provider
should assist them in accessing needed medical care.
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C.6: If the source patient dies before consent
for HIV testing can be obtained, can the corpse be tested for HIV?
Yes, in certain circumstances. Wisconsin statute 252.15(5m) allows HIV
testing of a corpse due to a certified significant exposure involving a:
- health care provider or agent/employee of a health care provider;
- Good Samaritan; or
- funeral director, coroner, medical examiner or their assistants.
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Additional Questions?
Contact:
Kathleen Krchnavek
HIV Testing Technology and Policy Specialist
Wisconsin AIDS/HIV Program
(608)267-3583
kathleen.krchnavek@wisconsin.gov
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Last Revised:
January 09, 2013
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