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Billing Prisoners for Medical Care Blocks Access
by Mark Lopez and Kara Chayriques
In 1976, the Supreme Court established in Estelle v. Gamble, 429 U.S. 97 (1976), that the government has an obligation to provide medical care for prisoners. This fundamental premise has been upheld in subsequent cases and establishes a prison's obligation to provide for prisoners' basic needs, which include medical care and treatment
"When the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself; and at the same time fails to provide for his basic human needs -- e.g., food, clothing, shelter, medical care, and reasonable safety -- it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause." DeShaney v. Winnebago County DSS, 489 U.S. 189, 199-200 (1989).
A Money-Saver or an Obstruction to Medical Care?
However, a recent and disturbing trend in correctional health care threatens to undermine this fundamental constitutional principle. More and more prison officials across the country are beginning to charge prisoners for basic medical care. Payment is typically exacted by two methods: first, in several states, Nevada most notably, prisoners are charged $4 for attending sick call. The second method is to require prisoners to purchase all over -the-counter (OTC) medications and products at market prices. Thus, sick call requests are simply returned to the prisoner with instructions to purchase an OTC product without ever being seen by medical staff. While practices may seem like beneficial cost-saving measures adopted by prison health care administrators, upon closer examination they interfere with access to health care services.
The policy of charging prisoners for medical services is widely hailed by corrections officials as a cost-cutting measure and a way to discourage those prisoners who abuse sick call Administrators argue that by charging prisoners they instill a sense of fiscal responsibility and force prisoners to make mature choices regarding how they spend their money. They also stress that no prisoner is denied access to medical care because of indigency. Instead, their account will go into a negative balance. When money is deposited into the account it will be applied to the charges for the medical services. No prisoner is charged for emergency care or for services initiated by a physician.
Administrators argue that the fee policy has greatly reduced the number of prisoners who come to sick call. For example, in an article in the Fall 1992 issue of CorrectCare, "Fees For Medical Services: A Cost-Saving Program," health care providers in Mobile County, Alabama describe a 50% decrease in the number of prisoners who sign up for sick call since the fee policy was implemented. Yet such a drastic drop suggests that the fee policy is excessive and forces prisoners to forego sick call in order to save money to spend on other essentials such as hygienic products or legal materials.
Prisoners and prisoner advocates take a different view. Whether the new payment schemes operate to discourage prisoners from attending sick call or directly obstruct access, the policies ignore the significance of full and unimpeded access to sick call and the importance of preventive care in correctional facilities. Because of the close quarters and crowding attendant to incarceration, effective measures must be taken to reduce the risk of infection and disease from spreading through the facility. The most basic of these measures is to operate daily sick-call clinics which prisoners are encouraged rather than discouraged to attend.
Early Evaluation Is Important
Timely access to sick call is the touchstone of a functioning prison health care system. Once the prisoner has entered the delivery system at the sick-call level and is seen by a clinically trained person who listens to the complaint and evaluates the need, an objective referral to a physician can be made or withheld. Through this method of triage, the relative few who choose to abuse sick call regularly will not impose profound monetary costs on the system, while legitimate users will have ready access to all appropriate levels of care.
For example, certain serious diseases with significant public health implications can present apparently benign symptoms at the outset, such as persistent cough, headache, or even a rash. However, these symptoms could signal the onset of something far more serious, such as tuberculosis or HIV disease. In a prison setting it is imperative that these medical conditions be identified and treated promptly.
Forced To Choose?
Prison health care administrators argue that fee policies force prisoners to make a choice about how they will spend their money, but prisoners typically receive no state pay because of the unavailability of a prison job, or are not paid a standard market salary. Most earn only $20 - $30 a month or less. The situation in jails is even worse. For example, at the New Orleans Jail where prisoners receive no pay and most have only a small amount of money in an account, a $3-$5 charge for an OTC product can be a substantial setback, especially if they have other things to buy. This practice was recently enjoined by United States Magistrate Judge Alma Chasez, in litigation brought by the National Prison Project in Hamilton v. Morial, Civ. No. 69-2443 (Order, Mar. 4 1993 (E.D.La)(discussed below).
A prisoner in the New Orleans Jail, as in most prisons and jails, must pay for very basic hygienic supplies such as underwear, socks, sheets, shaving cream, shampoo, skin lotion, toothpaste, toothbrushes, sanitary napkins, etc. This is also true of reading and writing materials, postage and phone calls. Except for meals, a pair of slacks, a shirt, and a blanket, prisoners are entirely dependent on their families to sustain them. Prisoners are therefore forced by payment policies to make a choice between two necessities of life in the institution: medication or hygienic/personal supplies. Many may choose to forego the OTC medication and try to obtain the other supplies believing that they do not have money for both.
Finally, payment policies typically have no provision for indigence. Policies will note only that the prisoner's commissary account will be debited and if there is no money in the account a "negative balance" will be created. Often, prisoners will do without hygiene items or medical treatment rather than have their families deposit funds that will be immediately confiscated to satisfy the prison's charges.
Legal Issues
Proponents of the various payment schemes claim that the courts have addressed the issue and determined the plan to be constitutional. Opponents take a different view of the courts' various interpretations of these practices. A decision from the Tenth Circuit Court of Appeals in Collins v. Romer, 962 F.2d 1508 (l0th Cir. 1992) is the most instructive case. In that case the court, dealing with an attorney fees issue, thoroughly discusses the (unreported) district court opinion which found the Colorado Department of Corrections' payment scheme unconstitutional (prior to its amendment). The original policy required a $3 payment whenever a prisoner was seen by a physician, dentist, or optometrist. The court observed that this requirement as much too harsh considering the meager level of prisoner pay and the state's corresponding duty to provide medical care. The amended policy, which imposed payment only if the prisoner sought a second opinion,. was subsequently upheld. On these facts, the court of appeals found that plaintiffs were responsible for the repeal of the original policy and were entitled to fees. Thus Collins, although mainly dealing with attorneys' fees, acknowledges the unconstitutionality of the Colorado medical payment policy.
The only other reported decisions addressing this subject are inconclusive on the fundamental Eighth Amendment question. In Shapley v. Nevada Bd. of State Prison Com'rs, 766 F2d 404 (9th Cir. 1985), a pro se prisoner argued that the imposition of a $3 charge for each medical visit was unconstitutional. The district court dismissed the complaint as frivolous; the court of appeals agreed, stating that the prisoner failed to allege "facts revealing how the $3 fee affected him." Shapley did not claim he was denied medical treatment because he was unable to pay the $3 fee, nor that prison officials denied medical care to other prisoners who are indigent. "The complaint alleges no facts which the court could construe as deliberate indifference...."Id at 408. This case plainly fails to reach the issue of payment despite the claims of payment proponents. [See also another inconclusive case from Nevada, Scott v Angelone, 771 F.Supp 1064 (D. Nev. 1991) affd 980 F2d 738 (9th Cir 1992).]
A policy in Louisiana of charging prisoners for over-the-counter medications was challenged recently by the National Prison Project in Hamilton v. Morial. The New Orleans sheriff instituted a policy whereby prisoners would be charged for 20 over-the-counter medications such as Tylenol, vitamins, ibuprofen, Sudafed, etc. The drug would be dispensed at sick call and the prisoner told that his commissary account would be debited the cost shown on the medication. He could either accept the charge and the drug, or refuse the drug. If he did not have enough money, the drugs would still be given, creating a negative balance in his account. The district court ordered the sheriff to stop charging prisoners for OTC medications. If the sheriff was having financial trouble with maintaining the pharmacy, the court said, he should seek redress with the city, not impose costs on the prisoners.
Better Management of Medical Services Is the Answer
The real point of the payment policies is not to offset the expense associated with the delivery of health services, but to reduce the number of prisoners who attend sick call. Newly implemented department-wide policies in Indiana and Montana bear this out. A prisoner submits a request for medical attention, otherwise known as a "kite." Health officials return it, without seeing the prisoner, with instructions to purchase an OTC medication from the commissary. Through this measure, sick call attendance has been reduced dramatically; without regard to whether the prisoner has any money in an account. In Montana, an indigent prisoner may resubmit a kite pointing out a lack of funds. After considerable delay, the medicine will be supplied. In Indiana no such allowance is made. Prison officials there take the position that they have no constitutional duty to attend to "non-serious" medical needs. Yet such a policy ignores the fact that without proper treatment, a "minor" condition could become serious, and be prevented altogether with prompt attention. Such a gross inattention to medical needs threatens prisoners' Eighth Amendment right to medical care.
If the current sick-call process is unmanageable at a particular institution prison administrators should manage it better or provide additional resources so that the required care is maintained. The appropriate response is to provide additional clinics, not to reduce prisoner access. This view is consistent with the analysis offered by B. Jaye Anno, secretary of the National Commission for Correctional Health Care. Writing about prisoner payments in a book published by the National Institute of Corrections, U.S. Department of Justice, she says:
" ...It begins with ensuring full and unimpeded access to the primary level of the prison's health care delivery system. Here the prisoner typically encounters a nurse... or other clinically trained person who listens to the complaint and evaluates the extent of need. Once the prisoner has "entered" the delivery system, all referrals to more specialized and more costly levels of care should be the decisions of professional staff based on an objective assessment. In this way the relatively few persons who choose to abuse sick call regularly will not impose significant monetary costs on the system. . ."
As to any anticipated cost savings, she adds:
"[E]stablishment of a co-payment system also may be viewed as a means of generating revenue, but fees high enough to generate appreciable revenues will inordinately reduce utilization. Moreover, the cost of collecting the co-payments is not insignificant and might well exceed any revenue generated. Therefore, the only possible economic benefit would result from decreased utilization."
To summarize, the various arguments raised to support payment policies all fail in light of the corresponding duty of the correctional system to provide for the medical care of its prisoners. A payment policy not only discourages the few who abuse sick call from attending, it also discourages those prisoners with legitimate medical concerns. Additionally, under no circumstances should the State be permitted to pass on the costs of medical care to prisoners by enforcing a fee policy. If that were allowed there would be no end to the costs the State might seek to recover from the prisoners and their families. Once prisoners have been deprived of their livelihood, it is incumbent upon the State to provide life's basic necessities, the most basic of which is medical care. See DeShaney, supra, 489 U.S. at 197-200.
[Editors' Note: The previous article is reprinted from the Spring 1994 issue of the National Prison Project Journal. We rarely reprint their articles because we encourage people to subscribe to the Journal. As more and more states pass laws charging prisoners for their medical care we think it is important that this information reach as wide an audience as possible. On June 15, 1995, Washington state passed HB 2010 which will charge prisoners $3 each time they seek medical care or treatment.
There is currently litigation pending on the legality of this type of law in the federal courts in Nevada and California challenging DOC laws. A pending lawsuit [PLN Feb. 1995], challenges the practice of charging detainees in the Pierce (Tacoma WA) County jail $3 each time they seek medical care. Litigation on this may also be pending in Arizona. So it is likely that more rulings will be coming down soon.
Two rulings of interest to readers are Benter v. Peck 825 F. Supp. 1411 (SD IA 1993) [PLN, Jan. 1994] which held that it violates the eighth amendment to charge prisoners for medical care because the state is obligated to provide such care to prisoners. Martin v. DeBruyn. 880 F. Supp. 610 (ND IN 1995) wlll be discussed at greater length in a future issue of PLN. In that case the court held that charging prisoners for medication was not necessarily unconstitutional but in this case the application of the policy may have violated the prisoner's eighth amendment rights. Benter involed a case going to trial and the prisoner winning over a $12 pair of eyeglasses. Martin is a case going to trial over less than $4 worth of ulcer medication. The latter court commented: "This is a dispute of constitutonal magnitude about the payment of less than four dollars for medicine. Regardless of whether the directives at issue ultimately are found to have violated anyone's constitutional rights the defendant's approach has produced a colorable constitutional claim costing the state and federal tax payers thousands of dollars more than the cost of the medicine. One wonders at the role of common sense in all this." As the authors note in the preceding article it's not about "common sense" or "cutting costs" and certainly not about safeguarding prisoners' health. We ask that readers keep us advised of any litigation and ruling on this issue so we can report developments on this issue.]
In 1976, the Supreme Court established in Estelle v. Gamble, 429 U.S. 97 (1976), that the government has an obligation to provide medical care for prisoners. This fundamental premise has been upheld in subsequent cases and establishes a prison's obligation to provide for prisoners' basic needs, which include medical care and treatment
"When the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself; and at the same time fails to provide for his basic human needs -- e.g., food, clothing, shelter, medical care, and reasonable safety -- it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause." DeShaney v. Winnebago County DSS, 489 U.S. 189, 199-200 (1989).
A Money-Saver or an Obstruction to Medical Care?
However, a recent and disturbing trend in correctional health care threatens to undermine this fundamental constitutional principle. More and more prison officials across the country are beginning to charge prisoners for basic medical care. Payment is typically exacted by two methods: first, in several states, Nevada most notably, prisoners are charged $4 for attending sick call. The second method is to require prisoners to purchase all over -the-counter (OTC) medications and products at market prices. Thus, sick call requests are simply returned to the prisoner with instructions to purchase an OTC product without ever being seen by medical staff. While practices may seem like beneficial cost-saving measures adopted by prison health care administrators, upon closer examination they interfere with access to health care services.
The policy of charging prisoners for medical services is widely hailed by corrections officials as a cost-cutting measure and a way to discourage those prisoners who abuse sick call Administrators argue that by charging prisoners they instill a sense of fiscal responsibility and force prisoners to make mature choices regarding how they spend their money. They also stress that no prisoner is denied access to medical care because of indigency. Instead, their account will go into a negative balance. When money is deposited into the account it will be applied to the charges for the medical services. No prisoner is charged for emergency care or for services initiated by a physician.
Administrators argue that the fee policy has greatly reduced the number of prisoners who come to sick call. For example, in an article in the Fall 1992 issue of CorrectCare, "Fees For Medical Services: A Cost-Saving Program," health care providers in Mobile County, Alabama describe a 50% decrease in the number of prisoners who sign up for sick call since the fee policy was implemented. Yet such a drastic drop suggests that the fee policy is excessive and forces prisoners to forego sick call in order to save money to spend on other essentials such as hygienic products or legal materials.
Prisoners and prisoner advocates take a different view. Whether the new payment schemes operate to discourage prisoners from attending sick call or directly obstruct access, the policies ignore the significance of full and unimpeded access to sick call and the importance of preventive care in correctional facilities. Because of the close quarters and crowding attendant to incarceration, effective measures must be taken to reduce the risk of infection and disease from spreading through the facility. The most basic of these measures is to operate daily sick-call clinics which prisoners are encouraged rather than discouraged to attend.
Early Evaluation Is Important
Timely access to sick call is the touchstone of a functioning prison health care system. Once the prisoner has entered the delivery system at the sick-call level and is seen by a clinically trained person who listens to the complaint and evaluates the need, an objective referral to a physician can be made or withheld. Through this method of triage, the relative few who choose to abuse sick call regularly will not impose profound monetary costs on the system, while legitimate users will have ready access to all appropriate levels of care.
For example, certain serious diseases with significant public health implications can present apparently benign symptoms at the outset, such as persistent cough, headache, or even a rash. However, these symptoms could signal the onset of something far more serious, such as tuberculosis or HIV disease. In a prison setting it is imperative that these medical conditions be identified and treated promptly.
Forced To Choose?
Prison health care administrators argue that fee policies force prisoners to make a choice about how they will spend their money, but prisoners typically receive no state pay because of the unavailability of a prison job, or are not paid a standard market salary. Most earn only $20 - $30 a month or less. The situation in jails is even worse. For example, at the New Orleans Jail where prisoners receive no pay and most have only a small amount of money in an account, a $3-$5 charge for an OTC product can be a substantial setback, especially if they have other things to buy. This practice was recently enjoined by United States Magistrate Judge Alma Chasez, in litigation brought by the National Prison Project in Hamilton v. Morial, Civ. No. 69-2443 (Order, Mar. 4 1993 (E.D.La)(discussed below).
A prisoner in the New Orleans Jail, as in most prisons and jails, must pay for very basic hygienic supplies such as underwear, socks, sheets, shaving cream, shampoo, skin lotion, toothpaste, toothbrushes, sanitary napkins, etc. This is also true of reading and writing materials, postage and phone calls. Except for meals, a pair of slacks, a shirt, and a blanket, prisoners are entirely dependent on their families to sustain them. Prisoners are therefore forced by payment policies to make a choice between two necessities of life in the institution: medication or hygienic/personal supplies. Many may choose to forego the OTC medication and try to obtain the other supplies believing that they do not have money for both.
Finally, payment policies typically have no provision for indigence. Policies will note only that the prisoner's commissary account will be debited and if there is no money in the account a "negative balance" will be created. Often, prisoners will do without hygiene items or medical treatment rather than have their families deposit funds that will be immediately confiscated to satisfy the prison's charges.
Legal Issues
Proponents of the various payment schemes claim that the courts have addressed the issue and determined the plan to be constitutional. Opponents take a different view of the courts' various interpretations of these practices. A decision from the Tenth Circuit Court of Appeals in Collins v. Romer, 962 F.2d 1508 (l0th Cir. 1992) is the most instructive case. In that case the court, dealing with an attorney fees issue, thoroughly discusses the (unreported) district court opinion which found the Colorado Department of Corrections' payment scheme unconstitutional (prior to its amendment). The original policy required a $3 payment whenever a prisoner was seen by a physician, dentist, or optometrist. The court observed that this requirement as much too harsh considering the meager level of prisoner pay and the state's corresponding duty to provide medical care. The amended policy, which imposed payment only if the prisoner sought a second opinion,. was subsequently upheld. On these facts, the court of appeals found that plaintiffs were responsible for the repeal of the original policy and were entitled to fees. Thus Collins, although mainly dealing with attorneys' fees, acknowledges the unconstitutionality of the Colorado medical payment policy.
The only other reported decisions addressing this subject are inconclusive on the fundamental Eighth Amendment question. In Shapley v. Nevada Bd. of State Prison Com'rs, 766 F2d 404 (9th Cir. 1985), a pro se prisoner argued that the imposition of a $3 charge for each medical visit was unconstitutional. The district court dismissed the complaint as frivolous; the court of appeals agreed, stating that the prisoner failed to allege "facts revealing how the $3 fee affected him." Shapley did not claim he was denied medical treatment because he was unable to pay the $3 fee, nor that prison officials denied medical care to other prisoners who are indigent. "The complaint alleges no facts which the court could construe as deliberate indifference...."Id at 408. This case plainly fails to reach the issue of payment despite the claims of payment proponents. [See also another inconclusive case from Nevada, Scott v Angelone, 771 F.Supp 1064 (D. Nev. 1991) affd 980 F2d 738 (9th Cir 1992).]
A policy in Louisiana of charging prisoners for over-the-counter medications was challenged recently by the National Prison Project in Hamilton v. Morial. The New Orleans sheriff instituted a policy whereby prisoners would be charged for 20 over-the-counter medications such as Tylenol, vitamins, ibuprofen, Sudafed, etc. The drug would be dispensed at sick call and the prisoner told that his commissary account would be debited the cost shown on the medication. He could either accept the charge and the drug, or refuse the drug. If he did not have enough money, the drugs would still be given, creating a negative balance in his account. The district court ordered the sheriff to stop charging prisoners for OTC medications. If the sheriff was having financial trouble with maintaining the pharmacy, the court said, he should seek redress with the city, not impose costs on the prisoners.
Better Management of Medical Services Is the Answer
The real point of the payment policies is not to offset the expense associated with the delivery of health services, but to reduce the number of prisoners who attend sick call. Newly implemented department-wide policies in Indiana and Montana bear this out. A prisoner submits a request for medical attention, otherwise known as a "kite." Health officials return it, without seeing the prisoner, with instructions to purchase an OTC medication from the commissary. Through this measure, sick call attendance has been reduced dramatically; without regard to whether the prisoner has any money in an account. In Montana, an indigent prisoner may resubmit a kite pointing out a lack of funds. After considerable delay, the medicine will be supplied. In Indiana no such allowance is made. Prison officials there take the position that they have no constitutional duty to attend to "non-serious" medical needs. Yet such a policy ignores the fact that without proper treatment, a "minor" condition could become serious, and be prevented altogether with prompt attention. Such a gross inattention to medical needs threatens prisoners' Eighth Amendment right to medical care.
If the current sick-call process is unmanageable at a particular institution prison administrators should manage it better or provide additional resources so that the required care is maintained. The appropriate response is to provide additional clinics, not to reduce prisoner access. This view is consistent with the analysis offered by B. Jaye Anno, secretary of the National Commission for Correctional Health Care. Writing about prisoner payments in a book published by the National Institute of Corrections, U.S. Department of Justice, she says:
" ...It begins with ensuring full and unimpeded access to the primary level of the prison's health care delivery system. Here the prisoner typically encounters a nurse... or other clinically trained person who listens to the complaint and evaluates the extent of need. Once the prisoner has "entered" the delivery system, all referrals to more specialized and more costly levels of care should be the decisions of professional staff based on an objective assessment. In this way the relatively few persons who choose to abuse sick call regularly will not impose significant monetary costs on the system. . ."
As to any anticipated cost savings, she adds:
"[E]stablishment of a co-payment system also may be viewed as a means of generating revenue, but fees high enough to generate appreciable revenues will inordinately reduce utilization. Moreover, the cost of collecting the co-payments is not insignificant and might well exceed any revenue generated. Therefore, the only possible economic benefit would result from decreased utilization."
To summarize, the various arguments raised to support payment policies all fail in light of the corresponding duty of the correctional system to provide for the medical care of its prisoners. A payment policy not only discourages the few who abuse sick call from attending, it also discourages those prisoners with legitimate medical concerns. Additionally, under no circumstances should the State be permitted to pass on the costs of medical care to prisoners by enforcing a fee policy. If that were allowed there would be no end to the costs the State might seek to recover from the prisoners and their families. Once prisoners have been deprived of their livelihood, it is incumbent upon the State to provide life's basic necessities, the most basic of which is medical care. See DeShaney, supra, 489 U.S. at 197-200.
[Editors' Note: The previous article is reprinted from the Spring 1994 issue of the National Prison Project Journal. We rarely reprint their articles because we encourage people to subscribe to the Journal. As more and more states pass laws charging prisoners for their medical care we think it is important that this information reach as wide an audience as possible. On June 15, 1995, Washington state passed HB 2010 which will charge prisoners $3 each time they seek medical care or treatment.
There is currently litigation pending on the legality of this type of law in the federal courts in Nevada and California challenging DOC laws. A pending lawsuit [PLN Feb. 1995], challenges the practice of charging detainees in the Pierce (Tacoma WA) County jail $3 each time they seek medical care. Litigation on this may also be pending in Arizona. So it is likely that more rulings will be coming down soon.
Two rulings of interest to readers are Benter v. Peck 825 F. Supp. 1411 (SD IA 1993) [PLN, Jan. 1994] which held that it violates the eighth amendment to charge prisoners for medical care because the state is obligated to provide such care to prisoners. Martin v. DeBruyn. 880 F. Supp. 610 (ND IN 1995) wlll be discussed at greater length in a future issue of PLN. In that case the court held that charging prisoners for medication was not necessarily unconstitutional but in this case the application of the policy may have violated the prisoner's eighth amendment rights. Benter involed a case going to trial and the prisoner winning over a $12 pair of eyeglasses. Martin is a case going to trial over less than $4 worth of ulcer medication. The latter court commented: "This is a dispute of constitutonal magnitude about the payment of less than four dollars for medicine. Regardless of whether the directives at issue ultimately are found to have violated anyone's constitutional rights the defendant's approach has produced a colorable constitutional claim costing the state and federal tax payers thousands of dollars more than the cost of the medicine. One wonders at the role of common sense in all this." As the authors note in the preceding article it's not about "common sense" or "cutting costs" and certainly not about safeguarding prisoners' health. We ask that readers keep us advised of any litigation and ruling on this issue so we can report developments on this issue.]
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