Chapter 302

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.

302.388(2)(f)2. 2. A prisoner’s health care provider.

302.388(2)(f)3. 3. In the case of a prison or jail that does not have medical staff on duty at the time of the transfer, a health care provider designated by the department or the jailer to review health summary forms.

302.388(2)(f)4. 4. In the case of a jail that does not have medical staff, a person designated by the jailer to maintain prisoner medical records.

302.388(2)(g) (g) If a prisoner’s health summary form or complete medical file indicates that the prisoner has a communicable disease and if disclosure of that information is necessary for the health and safety of the prisoner or of other prisoners, of a correctional officer who has custody of or is responsible for the supervision of the prisoner, of a person designated by a jailer to have custodial authority over the prisoner, of any other employee of the prison or jail, or of a law enforcement officer or other person who is responsible for transferring the prisoner to or from a prison or jail, receiving institution intake staff shall disclose that information to the persons specified in par. (f) 1. to 4. and to that correctional officer, person with custodial authority, law enforcement officer, or other person.

302.388(3) (3) Treatment summaries.

302.388(3)(a) (a) Each health care provider, other than medical staff, who provides health care services to a prisoner shall provide the department or the jail in which the prisoner is confined a written summary of the services provided and a description of follow-up care and treatment that the prisoner requires. The treatment summary may be made available to medical staff at the prison or jail at which the prisoner is confined or the prisoner’s health care provider or, in the case of a jail that does not have medical staff, to a person designated by the jailer to maintain prisoner medical records.

302.388(3)(b) (b) If a prisoner’s treatment summary indicates that the prisoner has a communicable disease and if disclosure of that information is necessary for the health and safety of the prisoner or of other prisoners, of a correctional officer who has custody of or is responsible for the supervision of the prisoner, of a person designated by a jailer to have custodial authority over the prisoner, of any employee of the prison or jail, or of a law enforcement officer or other person who is responsible for transferring the prisoner to or from a prison or jail, the department or jailer shall disclose that information to the persons to whom a treatment summary may be made available under par. (a) and to that correctional officer, person with custodial authority, law enforcement officer, or other person.

302.388(4) (4) Requests for prisoner medical records. Health care providers providing health care services to a prisoner or medical staff at the prison or jail in which a prisoner is confined may obtain patient health care records for the prisoner from other health care providers who have provided health care services to the prisoner while he or she has been confined in a prison or jail and from other prisons or jails in which the prisoner has been confined.

302.388 History History: 1999 a. 151; 2009 a. 28; 2011 a. 32.

302.39 302.39 Freedom of worship; religious ministration. Insofar as practicable, s. 301.33 shall apply to county jails.

302.39 History History: 1989 a. 31 s. 1663; Stats. 1989 s. 302.39.

302.40 302.40 Discipline; solitary confinement. For violating the rules of the jail, an inmate may be kept in solitary confinement, under the care and advice of a physician, but not over 10 days.

302.40 History History: 1989 a. 31 s. 1664; Stats. 1989 s. 302.40.

302.40 Annotation Pretrial detainees in jail are entitled to a due process hearing prior to more than a slight deprivation of privileges, including a loss of any privilege for more than one day. Representation by counsel is not essential. Inmates of Milwaukee County Jail v. Petersen, 353 F. Supp. 1157 (1973).

302.41 302.41 Care of prisoners. Whenever there is a prisoner in any jail there shall be at least one person of the same sex on duty who is wholly responsible to the sheriff or keeper for the custody, cleanliness, food and care of such prisoner.

302.41 History History: 1975 c. 94; 1989 a. 31 s. 1665; Stats. 1989 s. 302.41.

302.41 Annotation This section does not conflict with the Wisconsin Fair Employment Act. Discussing a “bona fide occupational qualification” under Title VII of the federal 1964 Civil Rights Act. Counties must comply with this section when they can do so without conflict with Title VII. 70 Atty. Gen. 202.

302.42 302.42 Jailer constantly at jail. There shall be a keeper or custodian or attendant present at every jail while there is a prisoner therein.

302.42 History History: 1989 a. 31 s. 1666; Stats. 1989 s. 302.42.