Chapter 302

302.38 History History: 1973 c. 198; 1987 a. 27, 269; 1989 a. 31 s. 1655c, 1656d; Stats. 1989 s. 302.38; 1989 a. 261, 359; 1995 a. 27, 43, 281, 352; 1997 a. 35; 2007 a. 20; 2017 a. 34.

302.38 Annotation Appropriate 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 Annotation When 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 Annotation Sub. (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).

302.381 302.381 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 History History: 1987 a. 394; 1989 a. 31 s. 1657; Stats. 1989 s. 302.381; 1995 a. 281.

302.383 302.383 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)(a)1. 1. A commitment under s. 51.20 (1) (a).

302.383(2)(a)3. 3. A voluntary transfer under s. 51.37 (5).

302.383(2)(a)4. 4. An emergency transfer under s. 51.37 (5).

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 History History: 1987 a. 394; 1989 a. 31 s. 1658; Stats. 1989 s. 302.383; 2009 a. 260.

302.383 Note NOTE: 1987 Wis. Act 394, which created this section, contains explanatory notes.

302.384 302.384 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 Note NOTE: 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 History History: 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).

302.385 302.385 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 History History: 1979 c. 221; 1983 a. 27; 1989 a. 31 s. 1660; Stats. 1989 s. 302.385; 1997 a. 289.

302.385 Annotation This 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).

302.386 302.386 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)(a) (a) The resident has the financial ability to pay.

302.386(2)(b) (b) The service is payable under any of the following:

302.386(2)(b)1. 1. A disability insurance policy under subch. VI of ch. 632.

302.386(2)(b)2. 2. Worker’s compensation under ch. 102.

302.386(2)(b)3. 3. Benefits from the state department of veterans affairs or the federal department of veterans affairs.

302.386(2)(b)4. 4. Hill-Burton benefits under 42 USC 291c (e).

302.386(2)(b)5. 5. Medicare benefits under 42 USC 1395 to 1395ccc, as limited by 42 USC 402 (x).

302.386(2)(b)6. 6. Third-party liability other than that in subds. 1. to 5.

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) (3) 

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)(a) (a) Any prisoner who is confined in the institution authorized in s. 301.046 (1).

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) (5m) 

302.386(5m)(a) (a) In this subsection:

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 Note NOTE: 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 History History: 1985 a. 29; 1989 a. 31 ss. 1661, 1662; Stats. 1989 s. 302.386; 1991 a. 39; 1995 a. 27, 77; 2001 a. 16; 2005 a. 105, 344; 2007 a. 20; 2015 a. 55.

302.386 Cross-reference Cross-reference: See also s. DOC 316.01, Wis. adm. code.

302.388 302.388 Prisoner medical records.

302.388(1) (1) Definitions. In this section:

302.388(1)(a) (a) “Health care provider” has the meaning given in s. 146.81 (1) (a) to (p).

302.388(1)(b) (b) “Jail” means a jail or house of correction.

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)(e) (e) “Patient health care records” has the meaning given in s. 146.81 (4).

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)(f)1. 1. Any person who is serving a sentence of detention under s. 973.03 (4) unless the person is in the county jail under s. 973.03 (4) (c).

302.388(1)(f)2. 2. Any child held in custody under ss. 48.19 to 48.21.

302.388(1)(f)3. 3. Any child participating in the mother-young child care program under s. 301.049.

302.388(1)(f)4. 4. A juvenile held in a jail under s. 938.209.

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) (2) Health summary form.

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.

302.388(2)(d) (d) If the prison does not have medical staff on duty at the time of a transfer, the warden or superintendent 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 department shall ensure that all of the following occur within 24 hours after the transfer, unless the prisoner returns to the prison within that time:

302.388(2)(d)1. 1. The prison 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 department reviews the form provided to the receiving institution at the time of the transfer.

302.388(2)(d)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)(d)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)(e) (e) Paragraph (c) does not apply if the department 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)(f) (f) Receiving institution intake staff may make a health summary form available to any of the following:

302.388(2)(f)1. 1. The prison’s or jail’s medical staff.