253.10(3)(d)
(d)
Printed information. By the date that is 60 days after May 16, 1996, the department shall cause to be published in English, Spanish, and other languages spoken by a significant number of state residents, as determined by the department, materials that are in an easily comprehensible format and are printed in type of not less than 12-point size. The department shall distribute a reasonably adequate number of the materials to county departments as specified under
s. 46.245 and upon request, shall annually review the materials for accuracy and shall exercise reasonable diligence in providing materials that are accurate and current. The materials shall be all of the following:
253.10(3)(d)1.
1. Geographically indexed materials that are designed to inform a woman about public and private agencies, including adoption agencies, and services that are available to provide information on family planning, as defined in
s. 253.07 (1) (a), including natural family planning information, to provide ultrasound imaging services, to assist her if she has received a diagnosis that her unborn child has a disability or if her pregnancy is the result of sexual assault or incest and to assist her through pregnancy, upon childbirth and while the child is dependent. The materials shall include a comprehensive list of the agencies available, a description of the services that they offer and a description of the manner in which they may be contacted, including telephone numbers and addresses, or, at the option of the department, the materials shall include a toll-free, 24-hour telephone number that may be called to obtain an oral listing of available agencies and services in the locality of the caller and a description of the services that the agencies offer and the manner in which they may be contacted. The materials shall provide information on the availability of governmentally funded programs that serve pregnant women and children. Services identified for the woman shall include medical assistance for pregnant women and children under
s. 49.47 (4) (am), the availability of family or medical leave under
s. 103.10, the Wisconsin works program under
ss. 49.141 to
49.161, child care services, child support laws and programs and the credit for expenses for household and dependent care and services necessary for gainful employment under section
21 of the internal revenue code. The materials shall state that it is unlawful to perform an abortion for which consent has been coerced, that any physician who performs or induces an abortion without obtaining the woman's voluntary and informed consent is liable to her for damages in a civil action and is subject to a civil penalty, that the father of a child is liable for assistance in the support of the child, even in instances in which the father has offered to pay for an abortion, and that adoptive parents may pay the costs of prenatal care, childbirth and neonatal care. The materials shall include information, for a woman whose pregnancy is the result of sexual assault or incest, on legal protections available to the woman and her child if she wishes to oppose establishment of paternity or to terminate the father's parental rights. The materials shall state that fetal ultrasound imaging and auscultation of fetal heart tone services are obtainable by pregnant women who wish to use them and shall describe the services.
253.10(3)(d)2.
2. Materials, including photographs, pictures or drawings, that are designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at 2-week gestational increments for the first 16 weeks of her pregnancy and at 4-week gestational increments from the 17th week of the pregnancy to full term, including any relevant information regarding the time at which the unborn child could possibly be viable. The pictures or drawings must contain the dimensions of the unborn child and must be realistic and appropriate for the stage of pregnancy depicted. The materials shall be objective, nonjudgmental and designed to convey only accurate scientific information about the unborn child at the various gestational ages, including appearance, mobility, brain and heart activity and function, tactile sensitivity and the presence of internal organs and external members. The materials shall also contain objective, accurate information describing the methods of abortion procedures commonly employed, the medical and psychological risks commonly associated with each such procedure, including the risks of infection, psychological trauma, hemorrhage, endometritis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies and infertility, and the medical risks commonly associated with carrying a child to birth.
253.10(3)(d)3.
3. A certification form for use under
par. (c) 5. that lists, in a check-off format, all of the information required to be provided under that subdivision.
253.10(3)(e)
(e)
Requirement to obtain materials. A physician who intends to perform or induce an abortion or another qualified physician, who reasonably believes that he or she might have a patient for whom the information under
par. (d) is required to be given, shall request a reasonably adequate number of the materials that are described under
par. (d) from the department under
par. (d) or from a county department as specified under
s. 46.245.
253.10(3)(f)
(f)
Medical emergency. If a medical emergency exists, the physician who is to perform or induce the abortion necessitated by the medical emergency shall inform the woman, prior to the abortion if possible, of the medical indications supporting the physician's reasonable medical judgment that an immediate abortion is necessary to avert her death or that a 24-hour delay in performance or inducement of an abortion will create a serious risk of substantial and irreversible impairment of one or more of the woman's major bodily functions. If possible, the physician shall obtain the woman's written consent prior to the abortion. The physician shall certify these medical indications in writing and place the certification in the woman's medical record.
253.10(3)(g)
(g)
Presumptions. Satisfaction of the conditions required under
par. (c) creates a rebuttable presumption that the woman's consent and, if the woman is a minor and if
s. 48.375 (4) (a) 2. does not apply, the consent of the individual who also gives consent under
s. 48.375 (4) (a) 1. to an abortion is informed. The presumption of informed consent may be overcome by a preponderance of evidence that establishes that the consent was obtained through fraud, negligence, deception, misrepresentation or omission of a material fact. There is no presumption that consent to an abortion is voluntary.
253.10(3m)
(3m) Pregnancy as the result of sexual assault or incest. 253.10(3m)(a)1.
1. The woman alleges that the pregnancy is the result of sexual assault under
s. 940.225 (1),
(2) or
(3) and states that a report alleging the sexual assault has been made to law enforcement authorities.
253.10(3m)(a)2.
2. Whoever provides the information that is required under
sub. (3) (c) 1. or
2., or both, confirms with law enforcement authorities that a report on behalf of the woman about the sexual assault has been made to law enforcement authorities, makes a notation to this effect and places the notation in the woman's medical record.
253.10(3m)(b)1.
1. The woman alleges that the pregnancy is the result of incest under
s. 948.06 (1) or
(1m) and states that a report alleging the incest has been made to law enforcement authorities.
253.10(3m)(b)2.
2. Whoever provides the information that is required under
sub. (3) (c) 1. or
2., or both, confirms with law enforcement authorities that a report on behalf of the woman about the incest has been made to law enforcement authorities, makes a notation to this effect and places the notation in the woman's medical record.
253.10(3m)(c)
(c) Upon receipt by the law enforcement authorities of a request for confirmation under
par. (a) 2. or
(b) 2., and after reasonable verification of the identity of the woman and her consent to release of the information, the law enforcement authorities shall confirm whether or not the report has been made. No record of a request or confirmation made under this paragraph may be disclosed by the law enforcement authorities.
253.10(4)
(4) Hotline. The department may maintain a toll-free telephone number that is available 24 hours each day, to provide the materials specified in
sub. (3) (d) 1.
253.10(5)
(5) Penalty. Any person who violates
sub. (3) or
(3m) (a) 2. or
(b) 2. shall be required to forfeit not less than $1,000 nor more than $10,000.
253.10(6)(a)(a) A person who violates
sub. (3) or
(3m) (a) 2. or
(b) 2. is liable to the woman on or for whom the abortion was performed or induced for damages arising out of the performance or inducement of the abortion, including damages for personal injury and emotional and psychological distress.
253.10(6)(b)
(b) A person who has been awarded damages under
par. (a) shall, in addition to any damages awarded under
par. (a), be entitled to not less than $1,000 nor more than $10,000 in punitive damages for a violation that satisfies a standard under
s. 895.043 (3).
253.10(6)(c)
(c) A conviction under
sub. (5) is not a condition precedent to bringing an action, obtaining a judgment or collecting the judgment under this subsection.
253.10(6)(d)
(d) Notwithstanding
s. 814.04 (1), a person who recovers damages under
par. (a) or
(b) may also recover reasonable attorney fees incurred in connection with the action.
253.10(6)(e)
(e) A contract is not a defense to an action under this subsection.
253.10(6)(f)
(f) Nothing in this subsection limits the common law rights of a person that are not in conflict with
sub. (3).
253.10(7)
(7) Affirmative defense. No person is liable under
sub. (5) or
(6) or under
s. 441.07 (1) (f),
448.02 (3) (a) or
457.26 (2) (gm) for failure under
sub. (3) (c) 2. d. to provide the printed materials described in
sub. (3) (d) to a woman or for failure under
sub. (3) (c) 2. d.,
e.,
f. or
g. to describe the contents of the printed materials if the person has made a reasonably diligent effort to obtain the printed materials under
sub. (3) (e) and
s. 46.245 and the department and the county department under
s. 46.215,
46.22 or
46.23 have not made the printed materials available at the time that the person is required to give them to the woman.
253.10(8)
(8) Construction. Nothing in this section may be construed as creating or recognizing a right to abortion or as making lawful an abortion that is otherwise unlawful.
253.10 AnnotationSection 253.10 (3) (c) 1. j. is unconstitutional. Karlin v. Foust,
975 F. Supp. 1177 (1997). This holding was not subject to the appeal in Karlin v. Foust,
188 F.3d 446.
253.10 Annotation
Sub. (2) (d) is constitutional and preempts the operation of s. 48.374 (5) (b) 1. in the case of emergency abortions for minors. Sub. (3) (c) 2. is constitutional; physicians may rely on their "best medical judgment" in delivering the content to be conveyed to the patient on the specific listed topics and cannot be held liable because prosecutors disagree with information provided to a woman on a certain topic. Sub. (3) (c) 1. g. is constitutional. Karlin v. Foust,
188 F.3d 446 (7th Cir. 1999).
253.11
253.11
Infant blindness. 253.11(1)(1) For the prevention of ophthalmia neonatorum or infant blindness the attending physician or midwife shall use a prophylactic agent approved by the department.
253.11(2)
(2) In a confinement not attended by a physician or nurse-midwife, if one or both eyes of an infant become inflamed, swollen and red or show an unnatural discharge at any time within 2 weeks after birth, the nurse, parents, or other person in charge shall report the facts in writing within 6 hours to the local health officer who shall immediately warn the person of the danger. The local health officer shall employ at the expense of the local health department a competent physician to examine and treat the case.
253.11(3)
(3) Any person who violates this section may be required to forfeit not more than $1,000.
253.11 History
History: 1979 c. 221;
1987 a. 332;
1993 a. 27 s.
314; Stats. 1993 s. 253.11.
253.115
253.115
Newborn hearing screening programs. 253.115(1)(a)
(a) "Hearing loss" means an inability in one or both ears to detect sounds at 30 decibels hearing level or greater in the frequency region of 500 to 4,000 hertz that affects speech recognition and auditory comprehension.
253.115(1)(b)
(b) "Hertz" means a unit of frequency equal to one cycle per second.
253.115(1)(d)
(d) "Infant" means a child from birth to 3 months of age.
253.115(1)(e)
(e) "Newborn hearing screening program" means a system of a hospital under which an infant may be tested, using currently available medical techniques, to determine if the infant has a hearing loss.
253.115(2)
(2) Beginning July 1, 2002, the department shall annually collect information from hospitals for the previous calendar year concerning the numbers of deliveries in each hospital and the availability in each hospital of a newborn hearing screening program. From this information, by July 31, 2003, and annually thereafter, the department shall determine the percentage of deliveries in this state that are performed in hospitals that have newborn hearing screening programs and shall report this information to the appropriate standing committees of the legislature under
s. 13.172 (3).
253.115(3)
(3) If, by August 5, 2003, the department determines that fewer than 88% of all deliveries in this state are performed in hospitals that have a newborn hearing screening program and so notifies the hospitals, every hospital shall, by January 1, 2004, have a newborn hearing screening program that is available to all infants who are delivered in the hospital.
253.115 History
History: 1999 a. 9,
185.
253.12
253.12
Birth defect prevention and surveillance system. 253.12(1)(a)
(a) "Birth defect" means any of the following conditions affecting an infant or child that occurs prior to or at birth and that requires medical or surgical intervention or interferes with normal growth and development:
253.12(1)(b)
(b) "Pediatric specialty clinic" means a clinic the primary purpose of which is to provide pediatric specialty diagnostic, counseling and medical management services to persons with birth defects by a physician subspecialist.
253.12(1)(c)
(c) "Infant or child" means a human being from birth to the age of 2 years.
253.12(2)(a)(a) Except as provided in
par. (b), all of the following shall report in the manner prescribed by the department under
sub. (3) (a) 3. a birth defect in an infant or child:
253.12(2)(a)1.
1. A pediatric specialty clinic in which the birth defect is diagnosed in an infant or child or treatment for the birth defect is provided to the infant or child.
253.12(2)(a)2.
2. A physician who diagnoses the birth defect or provides treatment to the infant or child for the birth defect.
253.12(2)(am)
(am) Any hospital in which a birth defect is diagnosed in an infant or child or treatment is provided to the infant or child may report the birth defect in the manner prescribed by the department under
sub. (3) (a) 3.
253.12(2)(b)
(b) No person specified under
par. (a) need report under
par. (a) if that person knows that another person specified under
par. (a) or
(am) has already reported to the department the required information with respect to the same birth defect of the same infant or child.
253.12(2)(c)
(c) If the department determines that there is a discrepancy in any data reported under this subsection, the department may request a physician, hospital or pediatric specialty clinic to provide to the department information contained in the medical records of patients who have a confirmed or suspected birth defect diagnosis. The physician, hospital or pediatric specialty clinic shall provide that information within 10 working days after the department requests it.
253.12(2)(d)
(d) The department may not require a person specified under
par. (a) 1. or
2. to report the name of an infant or child for whom a report is made under
par. (a) if the parent or guardian of the infant or child refuses to consent in writing to the release of the name or address of the infant or child.
253.12(2)(e)
(e) If the address of an infant or child for whom a report is made under
par. (a) is included in the report, the department shall encode the address to refer to the same geographical location.
253.12(3)(a)(a) The department shall do all of the following:
253.12(3)(a)1.
1. Establish and maintain an up-to-date registry that documents the diagnosis in this state of any infant or child who has a birth defect, regardless of the residence of the infant or child. The department shall include in the registry information that will facilitate all of the following:
253.12(3)(a)1.b.
b. Investigation of the incidence, prevalence and trends of birth defects using epidemiological surveys.
253.12(3)(a)1.c.
c. Development of primary preventive strategies to decrease the occurrence of birth defects without increasing abortions.
253.12(3)(a)1.d.
d. Referrals for early intervention or other appropriate services.
253.12(3)(a)2.
2. Specify by rule the birth defects the existence of which requires a report under
sub. (2) to be submitted to the department.
253.12(3)(a)3.
3. Specify by rule the content, format and procedures for submitting a report under
sub. (2).
253.12(3)(b)
(b) The department may monitor the data contained in the reports submitted under
sub. (2) to ensure the quality of that data and to make improvements in reporting methods.
253.12(3)(c)
(c) The department shall, not more than 10 years from the date of receipt of a report under
sub. (2), delete from any file of the department the name of an infant or child that is contained in the report.
253.12(4)
(4) Council on birth defect prevention and surveillance. The council on birth defect prevention and surveillance shall meet at least 4 times per year and shall do all of the following:
253.12(4)(a)
(a) Make recommendations to the department regarding the establishment of a registry that documents the diagnosis in the state of an infant or child who has a birth defect, as required under
sub. (3) (a) 1. and regarding the rules that the department is required to promulgate under
sub. (3) (a) 2. and
3. on the birth defects to be reported under
sub. (2) and on the general content and format of the report under
sub. (2) and procedures for submitting the report. The council shall also make recommendations regarding the content of a report that, because of the application of
sub. (2) (d), does not contain the name of the subject of the report.
253.12(4)(b)
(b) Coordinate with the early intervention interagency coordinating council to facilitate the delivery of early intervention services to children from birth to 3 years with developmental needs.
253.12(4)(c)
(c) Advise the secretary and make recommendations regarding the registry established under
sub. (3) (a) 1.
253.12(4)(d)
(d) Beginning April 1, 2002, and biennially thereafter, submit to the appropriate standing committees under
s. 13.172 (3) a report that details the effectiveness, utilization and progress of the registry established under
sub. (3) (a) 1.
253.12(5)(a)(a) Any information contained in a report made to the department under
sub. (2) that may specifically identify the subject of the report is confidential. The department may not release that confidential information except to the following, under the following conditions:
253.12(5)(a)1.
1. The parent or guardian of an infant or child for whom a report is made under
sub. (2).
253.12(5)(a)2.
2. A local health officer, a local birth-to-3 coordinator or an agency under contract with the department to administer the children with special health care needs program, upon receipt of a written request and informed written consent from the parent or guardian of the infant or child. The local health officer may disclose information received under this subdivision only to the extent necessary to render and coordinate services and follow-up care for the infant or child or to conduct a health, demographic or epidemiological investigation. The local health officer shall destroy all information received under this subdivision within one year after receiving it.
253.12(5)(a)3.
3. A physician, hospital or pediatric specialty clinic reporting under
sub. (2), for the purpose of verification of information reported by the physician, hospital or pediatric specialty clinic.
253.12(5)(a)4.
4. A representative of a federal or state agency upon written request and to the extent that the information is necessary to perform a legally authorized function of that agency, including investigation of causes, mortality, methods of prevention and early intervention, treatment or care of birth defects, associated diseases or disabilities. The information may not include the name or address of an infant or child with a condition reported under
sub. (2). The department shall notify the parent or guardian of an infant or child about whom information is released under this subdivision, of the release. The representative of the federal or state agency may disclose information received under this paragraph only as necessary to perform the legally authorized function of that agency for which the information was requested.
253.12(5)(b)
(b) The department may also release confidential information to a person proposing to conduct research if all of the following conditions are met:
253.12(5)(b)1.
1. The person proposing to conduct the research applies in writing to the department for approval to perform the research and the department approves the application. The application for approval shall include a written protocol for the proposed research, the person's professional qualifications to perform the proposed research and any other information requested by the department.
253.12(5)(b)2.
2. The research is for the purpose of studying birth defects surveillance and prevention.
253.12(5)(b)3.
3. If the research will involve direct contact with a subject of a report made under
sub. (2) or with any member of the subject's family, the department determines that the contact is necessary for meeting the research objectives and that the research is in response to a public health need or is for the purpose of or in connection with birth defects surveillance or investigations sponsored and conducted by public health officials. The department must also determine that the research has been approved by a certified institutional review board or a committee for the protection of human subjects in accordance with the regulations for research involving human subjects required by the federal department of health and human services for projects supported by that agency. Contact may only be made with the written informed consent of the parent or guardian of the subject of the report and in a manner and method approved by the department.
253.12(5)(b)4.
4. The person agrees in writing that the information provided will be used only for the research approved by the department.
