81 Op. Att'y Gen. 156 (1994)

81 Op. Att'y Gen. 156, 156 (1994)
Corrections, Department Of; Prisons And Prisoners; Except as provided in section 301.048(7), Stats., counties are financially responsible under sections 49.02 and 51.42 for the provision of medical and dental services, including psychiatric and AODA services, to persons in the community residential confinement program and to persons in the intensive sanctions program. DOC is under no statutory obligation to furnish treatment for inpatient or outpatient mental health and AODA services to persons in the intensive sanctions program unless they are in Type 1 prisons other than the community residential confinement program, but it is required to provide reimbursement for the actual cost of health care treatment furnished to persons in the intensive sanctions program who are placed by DOC in a facility or program pursuant to section 301.048(3)(a)1. and 6. when the cost of the treatment is authorized by DOC. DOC also possesses discretionary authority to provide inpatient and outpatient mental health services and outpatient AODA services to persons in the intensive sanctions program. OAG 9-94

December 21, 1994

81 Op. Att'y Gen. 156, 156 (1994)
JOSEPH P. GUIDOTE, JR., Corporation Counsel
  Outagamie County

81 Op. Att'y Gen. 156, 156 (1994)
  Your predecessor asked a number of questions concerning the obligation of the Department of Corrections ("DOC") to provide health care services to persons in the intensive sanctions program and the community residential confinement program. One set of questions concerned the nature of the obligation of any entity other than the state to provide "medical and dental services" to persons in the community residential confinement program and to persons in the intensive sanctions program who are not in Type 1 prisons, in light of the fact that section 302.386(5), Stats., indicates that the state is not required to provide such services.

81 Op. Att'y Gen. 156, 157 (1994)
  In my opinion, except as otherwise expressly provided in section 301.048(7), counties are required to provide for the health care needs of such persons under sections 49.02 and 51.42.

81 Op. Att'y Gen. 156, 157 (1994)
  Section 301.01 provides in part:

81 Op. Att'y Gen. 156, 157 (1994)
  In this chapter and chs. 302 to 304:

81 Op. Att'y Gen. 156, 157 (1994)
  ....

81 Op. Att'y Gen. 156, 157 (1994)
  (2)   "Prisoner" means any person who is either arrested, incarcerated, imprisoned or otherwise detained in excess of 12 hours by any law enforcement agency of this state, except when detention is pursuant to s. 51.15, 51.20, 51.45(11)(b) or 55.06(11)(a).

81 Op. Att'y Gen. 156, 157 (1994)
  ....

81 Op. Att'y Gen. 156, 157 (1994)
  (4)   "State correctional institution" means a state prison under s. 302.01.

81 Op. Att'y Gen. 156, 157 (1994)
  (5)   "Type 1 prison" means a state prison under s. 302.01, but excludes any institution that meets the criteria under s. 302.01 solely because of its status under s. 301.048(4)(b) [intensive sanctions program].

81 Op. Att'y Gen. 156, 157 (1994)
  (6)   "Type 2 prison" means a state prison under s. 302.01 that meets the criteria under s. 302.01 solely because of its status under s. 301.048(4)(b).

81 Op. Att'y Gen. 156, 157 (1994)
  Section 301.046 provides in part:

81 Op. Att'y Gen. 156, 157 (1994)
  Community residential confinement. (1) Institution status. The department shall establish and operate a community residential confinement program as a correctional institution under the charge of a superintendent. Under the program, the department shall confine prisoners in their places of residence or other places designated by the department. The secretary may allocate and reallocate existing and future facilities as part of the institution. The institution is subject to s. 301.02 and is a state prison as defined in s. 302.01.

81 Op. Att'y Gen. 156, 157-158 (1994)
  (2)   Inmate, officer and employe status. Inmates confined under sub. (1) are under the care and control of the institution, subject to its rules and discipline and subject to all laws pertaining to inmates of other correctional institutions.

81 Op. Att'y Gen. 156, 158 (1994)
  ....

81 Op. Att'y Gen. 156, 158 (1994)
  (3m)   Intensive sanctions program participants. The department may confine any intensive sanctions program participant under sub. (1).

81 Op. Att'y Gen. 156, 158 (1994)
  ....

81 Op. Att'y Gen. 156, 158 (1994)
  (5)   Electronic surveillance. The department shall monitor any prisoner's confinement under sub. (1) by the use of an electronic device worn continuously on the prisoner's person or by the confinement of the prisoner in supervised places designated by the department. The department may permit the prisoner to leave confinement for employment, education or other rehabilitative activities.

81 Op. Att'y Gen. 156, 158 (1994)
  Section 302.01 provides in part:

81 Op. Att'y Gen. 156, 158 (1994)
  The institutions named in this section, the correctional institution authorized under s. 301.16(1o), correctional institution authorized under s. 301.046(1), correctional institution authorized under s. 301.048(4)(b), minimum security correctional institutions authorized under s. 301.13, and state-local shared correctional facilities when established under s. 301.14, are state prisons.

81 Op. Att'y Gen. 156, 158 (1994)
  Section 302.385 provides:

81 Op. Att'y Gen. 156, 158 (1994)
  The standards for delivery of health services in state correctional institutions governed under s. 301.02 shall be based on the essential standards of the American medical association standards for health services in prisons, published in July 1979 and standards for health services in juvenile correctional facilities, published in August 1979.

81 Op. Att'y Gen. 156, 158 (1994)
  Section 302.386 provides in part:

81 Op. Att'y Gen. 156, 158-159 (1994)
  Medical and dental services for prisoners and forensic patients. (1) Except as provided in sub. (5), liability for medical and dental services furnished to residents housed in prisons identified in s. 302.01 or in a secured correctional facility as defined in s. 48.02(15m) or to forensic patients in state institutions for those services which are not provided by employes of the department shall be limited to the amounts payable under ss. 49.43 to 49.47, except s. 49.468, for similar services.

81 Op. Att'y Gen. 156, 159 (1994)
  (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 or in a secured correctional facility as defined in s. 48.02(15m) for which any of the following applies:

81 Op. Att'y Gen. 156, 159 (1994)
  (a)   The resident has the financial ability to pay.

81 Op. Att'y Gen. 156, 159 (1994)
  (b)   The service is payable under any of the following:

81 Op. Att'y Gen. 156, 159 (1994)
  1.   A disability insurance policy under subch. VI of ch. 632.

81 Op. Att'y Gen. 156, 159 (1994)
  2.   Worker's compensation under ch. 102.

81 Op. Att'y Gen. 156, 159 (1994)
  3.   Benefits from the state department of veterans affairs or the federal department of veterans affairs.

81 Op. Att'y Gen. 156, 159 (1994)
  4.   Hill-Burton benefits under 42 USC 291c (e).

81 Op. Att'y Gen. 156, 159 (1994)
  5.   Medicare benefits under 42 USC 1395 to 1395ccc, as limited by 42 USC 402 (x).

81 Op. Att'y Gen. 156, 159 (1994)
  6.   Third-party liability other than that in subds. 1 to 5.

81 Op. Att'y Gen. 156, 159 (1994)
  ....

81 Op. Att'y Gen. 156, 159 (1994)
  (5)   The state is not required to provide medical or dental services to any of the following:

81 Op. Att'y Gen. 156, 159 (1994)
  (a)   Any prisoner who is confined in the institution authorized in s. 301.046(1).

81 Op. Att'y Gen. 156, 159 (1994)
  (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).

81 Op. Att'y Gen. 156, 159-160 (1994)
  Under section 301.01(5), a Type 1 prison is any prison other than the intensive sanctions program. The community residential confinement program described in section 301.046 is therefore a Type 1 prison. See secs. 302.01 and 302.386(5)(b), Stats. Pursuant to sections 301.01(6) and 301.048(4)(b), the intensive sanctions program under section 301.048 is itself a Type 2 state prison. A person in the intensive sanctions program may, however, be placed in a Type 1 prison under that program. See sec. 301.048(3)(a)1., Stats. To the extent that this inquiry relates to persons who have no financial ability to make payment or obtain reimbursement through any of the methods described in section 302.386(2)(a) or (b), section 301.386(5) clearly provides that the state is not required to provide "medical and dental services" to persons in the community residential confinement program (including those placed in that program as part of the intensive sanctions program) or to persons in the intensive sanctions program, unless they have been imprisoned in a Type 1 prison other than the community residential confinement program.

81 Op. Att'y Gen. 156, 160 (1994)
  The term "medical and dental services" encompasses all forms of health care services reasonably required by persons in any type of state prison. Similar terminology appears in section 301.21(1)(b), authorizing DOC to contract with the State of Minnesota for the confinement of Wisconsin prisoners and in section 302.25(3)(a)2., authorizing DOC to enter into interstate corrections compacts with any other state. Other states would almost certainly insist that DOC pay for all forms of health care under such contracts or compacts.

81 Op. Att'y Gen. 156, 160-161 (1994)
  Section 302.386(2) is clearly intended to eliminate state liability for the provision of any kind of health care service whenever funding for the service is available from any other source. As used in connection with persons in state prisons, the term "medical and dental services" therefore generally includes mental health and related services. Psychiatric services are covered services under the categorical aids programs referred to in section 302.386(1). See, e.g., sec. 49.46(2)(b)6.f. and L., Stats. Although persons who are inmates of public institutions are not eligible to receive Medicaid, see 42 C.F.R. 435.1008(a) (1994), the United States Department of Health and Human Services, Region V, has advised the Wisconsin Department of Health and Social Services that persons confined to a home or other residence under the community residential confinement program are eligible for such assistance. The AMA standards for health services in prisons (July 1979), which are referred to in section 302.385 and were subsequently revised in 1987, also indicate that mental health services are to be provided in prisons.

81 Op. Att'y Gen. 156, 161 (1994)
  The obligation of counties to provide health care services is statutory. Section 49.02(1m) requires every county to furnish general relief to all eligible dependent persons within the county. Section 49.01(2) defines a "'[d]ependent person'" as "an individual without... presently available money, income, property... credit... or other means... sufficient to provide... necessary commodities and services." Section 49.01(5m), in turn, defines such commodities and services to include "medicine, medical, dental, and surgical treatment (including hospital care), optometrical services, [and] nursing[.]"

81 Op. Att'y Gen. 156, 161 (1994)
  Section 51.42(1)(b) provides in part:

81 Op. Att'y Gen. 156, 161 (1994)

  County Liability. The county board of supervisors has the primary responsibility for the well-being, treatment and care of the mentally ill, developmentally disabled, alcoholic and other drug dependent citizens residing within its county and for ensuring that those individuals in need of such emergency services found within its county receive immediate emergency services. County liability for care and services purchased through or provided by a county department of community programs... shall be based upon the client's county of residence....

81 Op. Att'y Gen. 156, 161 (1994)
  Section 51.42(3)(ar)4.c. obligates counties to provide "[i]npatient and outpatient care and treatment, residential facilities, partial hospitalization, emergency care and supportive transitional services."

81 Op. Att'y Gen. 156, 162 (1994)
  Since DOC has no obligation to provide medical and dental services under section 301.586(5),¯1 counties must do so under sections 49.02 and 51.42.

81 Op. Att'y Gen. 156, 162 (1994)
  Your predecessor also inquired as to whether DOC is statutorily obligated to furnish treatment or to provide reimbursement for inpatient or outpatient mental health and alcohol and other drug abuse ("AODA") services for persons in the intensive sanctions program under section 301.048 who are not in Type 1 prisons.

81 Op. Att'y Gen. 156, 162 (1994)
  In my opinion, DOC is not required to furnish direct treatment, but is required to provide reimbursement to persons placed by DOC in a facility or program listed in section 301.048(3) when such treatment is authorized by DOC. DOC also possesses general discretionary authority to provide inpatient and outpatient mental health services and outpatient AODA services to persons in the intensive sanctions program.

81 Op. Att'y Gen. 156, 162 (1994)
  Section 301.03 provides in part:

81 Op. Att'y Gen. 156, 162 (1994)
  The department shall:

81 Op. Att'y Gen. 156, 162 (1994)
  ....

81 Op. Att'y Gen. 156, 162 (1994)
  (2)   Supervise the custody and discipline of all prisoners and the maintenance of state correctional institutions and the industries therein.

81 Op. Att'y Gen. 156, 163 (1994)
  (2g)   Provide alcohol or other drug abuse assessments so that a prisoner can receive such an assessment either during his or her initial assessment and evaluation period in the state prison system or at the prison where he or she is placed after the initial assessment and evaluation period.

81 Op. Att'y Gen. 156, 163 (1994)
  (2m)   Provide alcohol or other drug abuse treatment at each state prison except a Type 2 prison, the correctional institution authorized under s. 301.046, a minimum security correctional institution authorized under s. 301.13 or a state-local shared correctional facility established under s. 301.14.

81 Op. Att'y Gen. 156, 163 (1994)
  ....

81 Op. Att'y Gen. 156, 163 (1994)
  (6)   Direct the correctional psychiatric service in all state correctional institutions.

81 Op. Att'y Gen. 156, 163 (1994)
  Section 301.048, as amended by 1993 Wisconsin Acts 79 and 437, provides:

81 Op. Att'y Gen. 156, 163 (1994)
  Intensive sanctions program. (1) Program administration and design. The department shall administer an intensive sanctions program. The department shall design the program to provide all of the following:

81 Op. Att'y Gen. 156, 163 (1994)
  (a)   Punishment that is less costly than ordinary imprisonment and more restrictive than ordinary probation or parole supervision.