On April 21, 2010, 2009 Wisconsin Act 209 was signed into law. Act 209 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.
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:
- indicates to the patient that HIV testing will be done unless the patient declines;
- 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;
- 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;
- provides an opportunity for the patient to ask questions or decline testing;
- 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 stat. § 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.