302.38302.38 Medical care of prisoners. 302.38(1)(1) If a prisoner needs medical or hospital care or is intoxicated or incapacitated by alcohol or another drug the sheriff, superintendent or other keeper of the jail or house of correction shall provide appropriate care or treatment and may transfer the prisoner to a hospital or to an approved treatment facility under s. 51.45 (2) (b) and (c), making provision for the security of the prisoner. The sheriff, superintendent or other keeper may provide appropriate care or treatment under this subsection for a prisoner under 18 years of age and may transfer a prisoner under 18 years of age under this subsection without obtaining the consent of the prisoner’s parent, guardian or legal custodian. The sheriff, superintendent or other keeper may charge a prisoner for the costs of providing medical care to the prisoner while he or she is in the jail or house of correction. If the sheriff or other keeper maintains a personal money account for an inmate’s use for payment for items from canteen, vending or similar services, the sheriff or other keeper may make deductions from the account to pay for the charges under this subsection. 302.38(2)(2) The prisoner is liable for the costs of medical and hospital care outside of the jail or house of correction. If the prisoner is unable to pay the costs, the county shall pay the costs in the case of persons held under the state criminal laws or for contempt of court and, except as provided in s. 302.336 (2) and (3) (b), a municipality shall pay the costs in the case of persons held under municipal ordinance by the municipality. 302.38(3)(3) The maximum amount that a governmental unit may pay for the costs of medical or hospital care under this section is limited for that care to the amount payable by medical assistance under subch. IV of ch. 49, excluding ss. 49.468 and 49.471 (11), for care for which a medical assistance rate exists. No provider of medical or hospital care may bill a prisoner under sub. (1) for the cost of care exceeding the amount paid under this subsection by the governmental unit. If no medical assistance rate exists for the care provided, there is no limitation under this subsection. 302.38(4)(4) The governmental unit paying the costs of medical or hospital care under this section, regardless of whether the care is provided in or out of the jail or house of correction, may collect the value of the same from the prisoner or the prisoner’s estate. If applicable, the governmental unit may proceed to collect under this section or may seek reimbursement under s. 302.372, but may not collect for the same expenses twice. 302.38(5)(5) This section does not require the sheriff, superintendent or keeper of the jail or house of correction to provide or arrange for the provision of appropriate care or treatment if the prisoner refuses appropriate care or treatment. 302.38 AnnotationAppropriate medical care for prisoners is mandatory under this section, but sheriffs have the discretion as to how to provide that care. Swatek v. County of Dane, 192 Wis. 2d 47, 531 N.W.2d 45 (1995). 302.38 AnnotationWhen charges against a prisoner were dismissed after the prisoner was admitted to a hospital for medical care, the prisoner lost the status as “a person held under the state criminal laws” under sub. (2). The county was no longer liable for medical costs incurred after the charges were dismissed. The prisoner’s status did not change when the Department of Corrections issued an apprehension request for the prisoner. Meriter Hospital, Inc. v. Dane County, 2004 WI 145, 277 Wis. 2d 1, 689 N.W.2d 627, 02-2837. 302.38 AnnotationSub. (1) does not confer a constitutionally protected substantive property right in an inmate’s prescription medication. An inmate denied medication need not have been afforded procedural due process either before or after the deprivation. Ledford v. Sullivan, 105 F.3d 354 (1997). 302.381302.381 Emergency services for crisis intervention for prisoners. The costs of providing emergency services for crisis intervention for prisoners of a jail or house of correction with medical illnesses or disabilities, mental illnesses, developmental disabilities or alcohol or other drug abuse problems are payable according to the criteria under s. 302.38 (2). If applicable, a county may seek payment under this section or seek reimbursement under s. 302.372, but may not collect for the same expenses twice. 302.381 HistoryHistory: 1987 a. 394; 1989 a. 31 s. 1657; Stats. 1989 s. 302.381; 1995 a. 281. 302.383302.383 Mental health treatment of prisoners. 302.383(2)(2) On or before January 30 annually, the sheriff or other keeper of a jail or house of correction shall report to the department on all of the following for the previous calendar year: 302.383(2)(a)(a) The number of prisoners from the jail or house of correction who were transferred to a state treatment facility and the number who were transferred to a county treatment facility under each of the following: 302.383(2)(b)(b) The length of stay in the treatment facility of each prisoner reported under par. (a). 302.383(3)(3) The report under sub. (2) shall include a description of the mental health services that are available to prisoners on either a voluntary or involuntary basis. 302.383 HistoryHistory: 1987 a. 394; 1989 a. 31 s. 1658; Stats. 1989 s. 302.383; 2009 a. 260. 302.383 NoteNOTE: 1987 Wis. Act 394, which created this section, contains explanatory notes. 302.384302.384 Procedure if a prisoner refuses appropriate care or treatment. 302.384(1m)(1m) In this section, “health care professional” means a person licensed, certified, or registered under ch. 441, 448, or 455; or a person who holds a compact privilege under subch. XI of ch. 448; or a psychologist who is exercising the temporary authorization to practice, as defined in s. 455.50 (2) (o), in this state or who is practicing under the authority to practice interjurisdictional telepsychology, as defined in s. 455.50 (2) (b). 302.384 NoteNOTE: Sub. (1m) is shown as affected by 2021 Wis. Acts 131 and 240 and as merged by the legislative reference bureau under s. 13.92 (2) (i). The cross-reference to subch. XI of ch. 448 was changed from subch. X of ch. 448 by the legislative reference bureau under s. 13.92 (1) (bm) 2. to reflect the renumbering under s. 13.92 (1) (bm) 2. of subch. X of ch. 448. 302.384(2m)(2m) A sheriff, jailer, keeper of any prison, jail or house of correction and the arresting officer are immune from civil liability for any acts or omissions that occur as the result of a good faith effort to allow a prisoner to refuse appropriate care or treatment if all of the following occur: 302.384(2m)(a)(a) A sheriff, jailer, keeper or officer arranges for a health care professional to observe the prisoner. 302.384(2m)(b)(b) The health care professional informs the prisoner of the availability of appropriate care or treatment. 302.384(2m)(c)(c) The health care professional indicates on records kept by a sheriff, jailer, keeper or officer that appropriate care or treatment was offered and that the prisoner refused that care or treatment. 302.384 HistoryHistory: 1987 a. 269, 403; 1989 a. 31 s. 1659; Stats. 1989 s. 302.384; 2019 a. 90; 2021 a. 131, 240; s. 13.92 (1) (bm) 2.; s. 13.92 (2) (i). 302.385302.385 Correctional institution health care. The standards for delivery of health services in state correctional institutions governed under s. 301.02 shall be based on the standards of any professional organization that establishes standards for health services in prisons and that is recognized by the department. 302.385 HistoryHistory: 1979 c. 221; 1983 a. 27; 1989 a. 31 s. 1660; Stats. 1989 s. 302.385; 1997 a. 289. 302.385 AnnotationThis section does not confer a constitutionally protected substantive property right in an inmate’s prescription medication. An inmate denied medication need not have been afforded procedural due process either before or after the deprivation. Ledford v. Sullivan, 105 F.3d 354 (1997). 302.386302.386 Medical and dental services for prisoners and forensic patients. 302.386(1)(1) Except as provided in sub. (5), liability for medical and dental services furnished to residents housed in prisons identified in s. 302.01, in a juvenile correctional facility, or in a secured residential care center for children and youth, or to forensic patients in state institutions for those services that are not provided by employees of the department shall be limited to the amounts payable under ss. 49.43 to 49.471, excluding ss. 49.468 and 49.471 (11), for similar services. The department may waive any such limit if it determines that needed services cannot be obtained for the applicable amount. No provider of services may bill the resident or patient for the cost of services exceeding the amount of the liability under this subsection. 302.386(2)(2) The liability of the state for medical and dental services under sub. (1) does not extend to that part of the medical or dental services of a resident housed in a prison identified in s. 302.01, a juvenile correctional facility, or a secured residential care center for children and youth, for which any of the following applies: 302.386(2)(b)(b) The service is payable under any of the following: 302.386(2)(b)3.3. Benefits from the state department of veterans affairs or the federal department of veterans affairs. 302.386(2m)(2m) The department shall collect moneys under sub. (2) for medical and dental services furnished to residents under sub. (1) and credit those moneys to the appropriation account under s. 20.410 (1) (gi). 302.386(3)(a)(a) Except as provided in par. (b), the department may require a resident housed in a prison identified in s. 302.01 or in a juvenile correctional facility who receives medical or dental services to pay a deductible, coinsurance, copayment, or similar charge upon the medical or dental service that he or she receives. The department shall collect the allowable deductible, coinsurance, copayment, or similar charge. 302.386(3)(b)(b) If the resident under par. (a) requests the medical services or dental services, the department shall require the resident to pay the deductible, coinsurance, copayment or similar charge. The department may not charge the person less than $2.50 for each request. The requirements under this paragraph are subject to the exception and waiver provisions under par. (c). 302.386(3)(c)(c) No provider of services may deny care or services because the resident is unable to pay the applicable deductible, coinsurance, copayment or similar charge, but an inability to pay these charges does not relieve the resident of liability for the charges unless the department excepts or waives the liability under criteria that the department shall establish by rule. 302.386(3)(d)(d) The department shall credit all moneys that it collects under this subsection to the appropriation account under s. 20.410 (1) (gi). 302.386(4)(4) The department shall promulgate rules to establish all of the following: 302.386(4)(a)(a) The specific medical or dental services on which a deductible, coinsurance, copayment or similar charge may be imposed under sub. (3) (a) or must be imposed under sub. (3) (b). 302.386(4)(b)(b) The amounts of deductibles, coinsurances, copayments or similar charges for the medical or dental services under par. (a). 302.386(5)(5) The state is not required to provide medical or dental services to any of the following: 302.386(5)(b)(b) Any participant in the intensive sanctions program under s. 301.048 unless he or she is imprisoned in a Type 1 prison other than the institution authorized in s. 301.046 (1). 302.386(5)(c)(c) Any person who is subject to community supervision under s. 938.533 unless the person is placed in a Type 1 juvenile correctional facility, as defined in s. 938.02 (19). 302.386(5)(d)(d) Any participant in the serious juvenile offender program under s. 938.538 unless the participant is placed in a Type 1 juvenile correctional facility, as defined in s. 938.02 (19). 302.386(5m)(a)1.1. “Hormonal therapy” means the use of hormones to stimulate the development or alteration of a person’s sexual characteristics in order to alter the person’s physical appearance so that the person appears more like the opposite gender. 302.386(5m)(a)2.2. “Sexual reassignment surgery” means surgical procedures to alter a person’s physical appearance so that the person appears more like the opposite gender. 302.386(5m)(b)(b) The department may not authorize the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy or sexual reassignment surgery for a resident or patient specified in sub. (1). 302.386 NoteNOTE: In Fields v. Smith, 712 F. Supp. 2d 830 (2010) the U.S. District Court for the Eastern District of Wisconsin granted a permanent injunction restraining the enforcement or attempted enforcement of sub. (5m) because any application of the statute would violate the 8th Amendment and Equal Protection clause of the U.S. Constitution. The U.S. Seventh Circuit Court of Appeals affirmed the district court at 653 F.3d 550 (2012). 302.386(6)(6) The department may collect a deductible, coinsurance, copayment or similar charge under this section or the department or the attorney general may collect under s. 301.325, but the state may not collect for the same expense twice. 302.386 Cross-referenceCross-reference: See also s. DOC 316.01, Wis. adm. code. 302.388302.388 Prisoner medical records. 302.388(1)(c)(c) “Jailer” means the sheriff, superintendent or other keeper of a jail. 302.388(1)(d)(d) “Medical staff” means health care providers employed by the department or a jail. 302.388(1)(f)(f) “Prisoner” means any person who is either arrested, incarcerated, imprisoned or otherwise detained in a jail or prison but does not include any of the following: 302.388(1)(g)(g) “Receiving institution intake staff” means the warden or superintendent or his or her designee, if a prisoner is transferred to a prison, or the jailer or his or her designee, if a prisoner is transferred to a jail. 302.388(2)(a)(a) The department shall provide each jailer a standardized form for recording the medical conditions and history of prisoners being transferred to the department or another county’s jail. Except as provided in pars. (b) and (bm), jail medical staff shall complete the form and provide it to the receiving institution intake staff at the time of each such transfer. 302.388(2)(b)(b) If the jail does not have medical staff on duty at the time of a transfer, the jailer or his or her designee shall complete as much of the form as possible and provide it to the receiving institution intake staff at the time of the transfer. The jailer shall ensure that all of the following occur within 24 hours after the transfer: 302.388(2)(b)1.1. The jail medical staff, the prisoner’s health care provider or, if the prisoner does not have a health care provider, a health care provider under contract with the jail reviews the form provided to the receiving institution at the time of the transfer. 302.388(2)(b)2.2. The medical staff or health care provider reviewing the form corrects any errors in the form and includes in it any additional available information. 302.388(2)(b)3.3. The medical staff or health care provider reviewing the form transmits the updated form or the information included on the form by the quickest available means to the receiving institution intake staff. 302.388(2)(bm)(bm) Jail medical staff need not complete the form if the jailer or his or her designee provides a copy of the prisoner’s complete medical file to the receiving institution intake staff at the time of the transfer. 302.388(2)(c)(c) Except as provided in pars. (d) and (e), the department shall complete the form described in par. (a) for each prisoner whom the department transfers to a jail and shall provide it to the receiving institution intake staff at the time of the transfer.
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