302.38 Medical care of prisoners.

(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.

(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.

(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.

(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.

(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.

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.

Appropriate medical care for prisoners is mandatory under this section, but sheriffs have the discretion as to how to provide that care. Swatek v. Dane County, 192 Wis. 2d 47, 531 N.W.2d 45 (1995).

When charges against a prisoner were dismissed after the prisoner was admitted to a hospital for medical care, the prisoner lost his 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 him. Meriter Hospital, Inc. v. Dane County, 2004 WI 145, 277 Wis. 2d 1, 689 N.W.2d 627, 02-2837.

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).