Feed for /2011/related/amendments/sb306/asa1_sb306 PDF
March 13, 2012 - Offered by Representatives Pocan, Berceau, Sinicki,
Pope-Roberts, Hebl, Turner
and C. Taylor.
SB306-ASA1,1,3 1An Act to amend 441.07 (1) (f), 448.02 (3) (a) and 457.26 (2) (gm); and to create
2146.39 of the statutes; relating to: voluntary and informed consent for erectile
3dysfunction medications and providing a penalty.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB306-ASA1, s. 1 4Section 1. 146.39 of the statutes is created to read:
SB306-ASA1,1,6 5146.39 Voluntary and informed consent; prescription of erectile
6dysfunction medications.
(1) Definitions. In this section:
SB306-ASA1,1,117 (a) "Qualified person assisting the physician" means a social worker certified
8under ch. 457, a registered nurse, or a physician assistant to whom a physician who
9is to prescribe a medication to treat erectile dysfunction has delegated the
10responsibility, as the physician's agent, for providing the information required under
11sub. (2) (c) 2.
SB306-ASA1,2,2
1(b) "Qualified physician" means a physician who by training or experience is
2qualified to provide the information required under sub. (2) (c) 1.
SB306-ASA1,2,6 3(2) Voluntary and informed consent. (a) Generally. Medications to treat
4erectile dysfunction may not be prescribed or given unless the man who is to receive
5the medications has given voluntary and informed written consent under the
6requirements of this section.
SB306-ASA1,2,177 (b) Voluntary consent. Consent under this section to erectile dysfunction
8medications is voluntary only if the consent is given freely and without coercion by
9any person. The physician who is to prescribe or give the erectile dysfunction
10medications shall determine whether the individual's consent is, in fact, voluntary.
11Notwithstanding par. (c) 3., the physician shall make the determination by speaking
12to the individual in person, out of the presence of anyone other than a person working
13for or with the physician. If the physician has reason to suspect that the individual
14is in danger of being physically harmed by anyone who is coercing the individual to
15consent to erectile dysfunction medications against his will, the physician shall
16inform the individual of services for victims or individuals at risk of domestic abuse
17and provide him with private access to a telephone.
SB306-ASA1,2,1918 (c) Informed consent. An individual's consent to receive erectile dysfunction
19medications is informed only if all of the following first take place:
SB306-ASA1,2,2320 1. At least 24 hours before the erectile dysfunction medication is to be given,
21the physician who prescribes or gives the erectile dysfunction medication or any
22other qualified physician has, in person, orally informed the individual of all of the
23following:
SB306-ASA1,2,2524 a. Whether or not, according to the reasonable medical judgment of the
25physician, the individual is a candidate for erectile dysfunction medication.
SB306-ASA1,3,3
1b. The probable condition of the man's body and sexual organs at the time that
2the information is provided. The physician or other qualified physician shall also
3provide this information to the individual in writing at this time.
SB306-ASA1,3,54 c. The particular medical risks, if any, associated with the man's sexual
5condition.
SB306-ASA1,3,76 d. The probable anatomical and physiological characteristics of the man's
7sexual organs.
SB306-ASA1,3,98 e. The details of the medical method that would be used to treat the erectile
9dysfunction.
SB306-ASA1,3,1110 f. The medical risks associated with the particular erectile dysfunction
11medication that would be used.
SB306-ASA1,3,1512 g. The recommended general medical instructions for the individual to follow
13after taking erectile dysfunction medications to enhance his safe recovery and the
14name and telephone number of a physician to call if complications arise after taking
15an erectile dysfunction medication.
SB306-ASA1,3,2016 h. That the individual has a right to refuse to consent to erectile dysfunction
17medications, that his consent is not voluntary if anyone is coercing him to consent
18to taking erectile dysfunction medications against his will, and that it is unlawful for
19the physician to prescribe or give erectile dysfunction medications without his
20voluntary consent.
SB306-ASA1,3,2221 i. That the individual may withdraw his consent to take erectile dysfunction
22medications at any time.
SB306-ASA1,3,2523 j. That the individual is not required to pay any amount for erectile dysfunction
24medications until at least 24 hours have elapsed after the requirements of this
25paragraph are met.
SB306-ASA1,4,3
1k. That the man must return to the facility for a follow-up visit 12 to 18 days
2after the use of an erectile dysfunction medication to confirm the efficacy of the
3medication and evaluate the man's medical condition.
SB306-ASA1,4,74 2. At least 24 hours before prescribing or giving the erectile dysfunction
5medication, the physician who is to prescribe or give the medication, a qualified
6person assisting the physician, or another qualified physician has, in person, done
7all of the following:
SB306-ASA1,4,138 a. Orally informed the man that he has the right to receive and review the
9printed materials described in par. (d). The physician or qualified person assisting
10the physician shall physically give the materials to the individual and shall, in
11person, orally inform him that the materials are free of charge and have been
12provided by the state and shall provide him with the current updated copies of the
13printed materials free of charge.
SB306-ASA1,4,1614 b. Orally informed the man that the printed materials described in par. (d)
15contain information on services available for victims or individuals at risk of
16domestic abuse.
SB306-ASA1,4,1917 c. Orally inform the man that the printed materials described in par. (d) contain
18information on the availability of public and private agencies and services to provide
19the individual with information on erectile dysfunction.
SB306-ASA1,4,2220 d. Shown the man a video, developed by the department, depicting erectile
21dysfunction, the risks of taking erectile dysfunction medications, and alternative
22treatments for erectile dysfunction.
SB306-ASA1,5,323 3. The information that is required under subds. 1. and 2. is provided to the
24individual in an individual setting that protects his privacy, maintains the
25confidentiality of his decision, and ensures that the information he receives focuses

1on his individual circumstances. This subdivision may not be construed to prevent
2the individual from having a family member, or any other person of his choice,
3present during his private counseling.
SB306-ASA1,5,74 4. Whoever provides the information that is required under subd. 1. or 2., or
5both, provides adequate opportunity for the man to ask questions and provides the
6information that is requested or indicates to the man where he can obtain the
7information.
SB306-ASA1,5,178 5. The individual certifies in writing on a form that the department shall
9provide, prior to prescription or giving of erectile dysfunction medications, that the
10information that is required under subds. 1. and 2. has been provided to him in the
11manner specified in subd. 3., that he has been offered the information described in
12par. (d), and that all of his questions, as specified under subd. 4., have been answered
13in a satisfactory manner. The physician who is to prescribe or give the erectile
14dysfunction medications or the qualified person assisting the physician shall write
15on the certification form the name of the physician who is to prescribe or give the
16erectile dysfunction medications. The individual shall indicate on the certification
17form who provided the information to him or her and when it was provided.
SB306-ASA1,5,2318 6. Prior to the prescription or giving of erectile dysfunction medications, the
19physician who is to prescribe or give the medications or the qualified person assisting
20the physician receives the written certification that is required under subd. 5. The
21physician or qualified person assisting the physician shall place the certification in
22the individual's medical record and shall provide the individual with a copy of the
23certification.
SB306-ASA1,6,524 7. If the individual considering erectile dysfunction medications is a minor, the
25requirements to provide information to the minor under subds. 1. to 6. apply also to

1require provision of the information to the individual whose consent is required. If
2the individual considering erectile dysfunction medications is an individual
3adjudicated incompetent in this state, the requirements to provide information to the
4individual under subds. 1. to 6. apply to also require provision of the information to
5the person appointed as the individual's guardian.
SB306-ASA1,6,146 (d) Printed information. By the date that is 60 days after May 1, 2012, the
7department shall cause to be published in English, Spanish, and other languages
8spoken by a significant number of state residents, as determined by the department,
9materials that are in an easily comprehensible format and are printed in type of not
10less than 12-point size. The department shall distribute a reasonably adequate
11number of the materials to county departments under s. 46.215, 46.22, or 46.23 and,
12upon request, shall annually review the materials for accuracy and shall exercise
13reasonable diligence in providing materials that are accurate and current. The
14materials shall be all of the following:
SB306-ASA1,7,1015 1. Geographically indexed materials that are designed to inform an individual
16about public and private agencies and services that are available to provide
17information on erectile dysfunction and provide imaging services. The materials
18shall include a comprehensive list of the agencies available, a description of the
19services that they offer and a description of the manner in which they may be
20contacted, including telephone numbers and addresses, or, at the option of the
21department, the materials shall include a toll-free, 24-hour telephone number that
22may be called to obtain an oral listing of available agencies and services in the locality
23of the caller and a description of the services that the agencies offer and the manner
24in which they may be contacted. The materials shall provide information on the
25availability of governmentally funded programs that serve individuals with erectile

1dysfunction. Services identified for the individual shall include Medical Assistance.
2The materials shall state that it is unlawful to prescribe or give erectile dysfunction
3medications for which consent has been coerced and that any physician who
4prescribes or gives erectile dysfunction medication without obtaining the
5individual's voluntary and informed consent is liable to him for damages in a civil
6action and is subject to a civil penalty. The materials shall state that imaging
7services may be obtainable by individuals with erectile dysfunction and individuals
8who wish to use them and shall describe the services. The materials shall include
9information on services in the state that are available for victims or individuals at
10risk of domestic abuse.
SB306-ASA1,7,1811 2. Materials, including videos, photographs, pictures, or drawings, that are
12designed to show erectile dysfunction and treatments for erectile dysfunction. The
13pictures, drawings, and videos must be realistic and appropriate for the stage of
14erectile dysfunction depicted. The materials shall be objective, nonjudgmental and
15designed to convey only accurate scientific information about erectile dysfunction at
16the various stages. The materials shall also contain objective, accurate information
17describing the methods of erectile dysfunction treatments commonly employed, and
18the medical and psychological risks commonly associated with each such procedure.
SB306-ASA1,7,2019 3. A certification form for use under par. (c) 5. that lists, in a check-off format,
20all of the information required to be provided under that subdivision.
SB306-ASA1,8,221 (e) Requirement to obtain materials. A physician who intends to prescribe
22erectile dysfunction medication or another qualified physician, who reasonably
23believes that he or she might have a patient for whom the information under par. (d)
24is required to be given, shall request a reasonably adequate number of the materials

1that are described under par. (d) from the department under par. (d) or from a county
2department under s. 46.215, 46.22, or 46.23.
SB306-ASA1,8,93 (f) Presumptions. Satisfaction of the conditions required under par. (c) creates
4a rebuttable presumption that the individual's consent and, if the individual is a
5minor, the consent of the individual who also gives consent, to an erectile dysfunction
6medication is informed. The presumption of informed consent may be overcome by
7a preponderance of evidence that establishes that the consent was obtained through
8fraud, negligence, deception, misrepresentation or omission of a material fact. There
9is no presumption that consent to erectile dysfunction medication is voluntary.
SB306-ASA1,8,12 10(3) Penalty. Any person who violates sub. (2) shall be required to forfeit not
11less than $1,000 nor more than $10,000. No penalty may be assessed against the
12man who is prescribed or who receives erectile dysfunction medication.
SB306-ASA1,8,17 13(4) Civil remedies. (a) A person who violates sub. (2) is liable to the man for
14whom the erectile dysfunction medication was prescribed or to whom the erectile
15dysfunction medication was given for damages arising out of the prescription or
16giving of erectile dysfunction medication, including damages for personal injury and
17emotional and psychological distress.
SB306-ASA1,8,2118 (b) A person who has been awarded damages under par. (a) shall, in addition
19to any damages awarded under par. (a), be entitled to not less than $1,000 nor more
20than $10,000 in punitive damages for a violation that satisfies a standard under s.
21895.043 (3).
SB306-ASA1,8,2322 (c) A conviction under sub. (3) is not a condition precedent to bringing an action,
23obtaining a judgment, or collecting the judgment under this subsection.
SB306-ASA1,9,3
1(d) Notwithstanding s. 814.04 (1), a person who recovers damages under par.
2(a) or (b) may also recover reasonable attorney fees incurred in connection with the
3action.
SB306-ASA1,9,44 (e) A contract is not a defense to an action under this subsection.
SB306-ASA1,9,65 (f) Nothing in this subsection limits the common law rights of a person that are
6not in conflict with sub. (2).
SB306-ASA1,9,14 7(5) Affirmative defense. No person is liable under sub. (3) or (4) or under s.
8441.07 (1) (f), 448.02 (3) (a), or 457.26 (2) (gm) for failure under sub. (2) (c) 2. to provide
9the printed materials described in sub. (2) (d) to an individual or for failure under
10sub. (2) (c) 2. to describe the contents of the printed materials if the person has made
11a reasonably diligent effort to obtain the printed materials under sub. (2) (e) and the
12department and the county department under s. 46.215, 46.22, or 46.23 have not
13made the printed materials available at the time that the person is required to give
14them to the individual.
SB306-ASA1,9,16 15(6) Prescription of medications. (a) No person may give a medication to treat
16erectile dysfunction to a man unless all of the following are satisfied:
SB306-ASA1,9,1917 1. The physician who prescribed the medication to treat erectile dysfunction
18performs a physical exam on the man before the information is provided under sub.
19(2).
SB306-ASA1,9,2120 2. The physician who prescribed the medication to treat erectile dysfunction
21is physically present in the room when the drug is given to the man.
SB306-ASA1,9,2422 (b) Any person who violates this subsection is guilty of a Class I felony. No
23penalty may be assessed against a man for whom a medication to treat erectile
24dysfunction is prescribed.
SB306-ASA1, s. 2 25Section 2. 441.07 (1) (f) of the statutes is amended to read:
SB306-ASA1,10,2
1441.07 (1) (f) A violation of the requirements of s. 146.39 (2) (c) 2., 3., 4., 5., 6.,
2or 7. or
253.10 (3) (c) 2., 3., 4., 5., 6. or 7.
SB306-ASA1, s. 3 3Section 3. 448.02 (3) (a) of the statutes is amended to read:
SB306-ASA1,10,224 448.02 (3) (a) The board shall investigate allegations of unprofessional conduct
5and negligence in treatment by persons holding a license, certificate or limited
6permit granted by the board. An allegation that a physician has violated s. 146.39
7(2),
253.10 (3), 448.30 or 450.13 (2) or has failed to mail or present a medical
8certification required under s. 69.18 (2) within 21 days after the pronouncement of
9death of the person who is the subject of the required certificate or that a physician
10has failed at least 6 times within a 6-month period to mail or present a medical
11certificate required under s. 69.18 (2) within 6 days after the pronouncement of death
12of the person who is the subject of the required certificate is an allegation of
13unprofessional conduct. Information contained in reports filed with the board under
14s. 49.45 (2) (a) 12r., 50.36 (3) (b), 609.17 or 632.715, or under 42 CFR 1001.2005, shall
15be investigated by the board. Information contained in a report filed with the board
16under s. 655.045 (1), as created by 1985 Wisconsin Act 29, which is not a finding of
17negligence or in a report filed with the board under s. 50.36 (3) (c) may, within the
18discretion of the board, be used as the basis of an investigation of a person named in
19the report. The board may require a person holding a license, certificate or limited
20permit to undergo and may consider the results of one or more physical, mental or
21professional competency examinations if the board believes that the results of any
22such examinations may be useful to the board in conducting its investigation.
SB306-ASA1, s. 4 23Section 4. 457.26 (2) (gm) of the statutes is amended to read:
SB306-ASA1,11,2
1457.26 (2) (gm) Violated the requirements of s. 146.39 (2) (c) 2., 3., 4., 5., 6., or
27. or
253.10 (3) (c) 2., 3., 4., 5., 6. or 7.
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