Review of Jail Systems within the State of Tennessee

1
Review of Jail Systems within the State of
Tennessee

• Report to the TCSA Board of Directors By the Jail
  Cost Study Committee

2
Introduction

• For many years, courts have found that conditions
  of confinement in many U.S. Jails violate
  constitutional rights contained in the eighth
  amendment (banning cruel and unusual punishment)
  and the fourteenth amendment (which guarantees
  due process rights). Federal courts have ordered
  counties to make extensive changes, costing
  extraordinary amounts, to address a wide array of
  jail problems and issues
• The Tennessee constitution requires each county
  to elect a sheriff and other officials, whose
  duties are determined by the general assembly.
  T.C.A. 41-4-101 places sheriffs in charge of
  county jails and all their prisoners. The
  sheriff may appoint a jailer, but the sheriff is
  civilly responsible for the jailers actions

3
Introduction cont

• Tennessee jails hold inmates who
• have been committed for trial for public offenses
  
• have been sentenced to a penitentiary, but await
  transfer to the prison
• have been committed for contempt or on civil
  process
• have been committed for failure to give security
  for their appearances as witnesses in criminal
  cases
• have been charged with or convicted of criminal
  offenses against the United States
• are awaiting transfer to a mental health
  facility, or
• have otherwise been committed by authority of law
  

4
Background

• In Tennessee, sheriffs have the responsibility to
  manage county jails, however, several state
  agencies impact jail operations
• State agencies that affect county jail
  operations
• The Tennessee Corrections Institute (TCI)
• The Department of Correction (DOC)
• The Department of Mental Health and Developmental
  Disabilities (DMHDD)

5
Background cont

• In 1980, the legislature gave TCI (Tennessee
  Corrections Institute) the responsibility to
  inspect all county jails and workhouses
• TCI staff inspects local correctional facilities
  using standards approved by the Board of Control
• Staff recommends certification or
  non-certification based on compliance or
  non-compliance with existing law and regulations
• Non-certified facilities are in a less defendable
  position in a lawsuit and run the risk of losing
  insurance coverage
• As of September 2007, there are twenty-three
  non-certified county jails in Tennessee

6
Background cont

• The Department of Correction pays local jails to
  house inmates for various reasons. In some cases
  felons await transfer to penitentiaries to serve
  their sentences, but remain in local facilities
  for extended periods because state facilities
  lack space. The Department of Correction also
  contracts with some local jails to hold state
  prisoners to alleviate overcrowding in state
  facilities. In other cases, judges sentence
  felons to serve their terms in county facilities

7
Analysis and Issues

• According to a recent CTAS survey, county
  governments in Tennessee are continuing to spend
  substantial amounts of money on jail projects
• During the past three years, fifteen counties
  have spent 165 million on a jail or justice
  center project
• This construction has provided an additional
  4,096 inmate beds
• However, a substantial portion of this funding
  comes from the larger, urbanized counties
  Shelby 39 million Davidson and Montgomery 30
  million each Sumner 23 million (55 of total)
• As of this year, nine (9) counties are currently
  working on a jail/justice center project for an
  additional cost of 55.5 million
• From 1996-2001, 24 counties increased jail
  capacity by building new jails, 19 counties
  renovated existing facilities, and 14 added new
  space to existing facilities
• Tennessee counties continue to invest huge sums
  of tax dollars in jail construction and
  improvements

8
Analysis and Issues cont

• Another growing jail issue is the increase in the
  number of inmates with mental illnesses or
  disabilities and/or substance abuse
• The Department of Mental Health and Developmental
  Disabilities (MHDD) is responsible for court
  ordered forensic evaluations to determine a
  defendants competency to stand trial and/or
  mental condition at the time of the offense
• Regional Mental Health Institutes, administered
  by DMHDD, serve pre-trial individuals from jails
  that meet emergency involuntary commitment
  standards
• Defendants ordered for forensic evaluations or
  other pre-trial defendants are admitted without
  regard to bed availability upon meeting standards
  for emergency involuntary commitment
• DMHDD has created a diversion program with
  community mental health centers to serve inmates
  in selected areas of the state
• In these programs, criminal justice/mental
  liaisons work to find alternative placements and
  services for inmates with mental illnesses

9
Analysis and Issues Cont

• Tennessees local correctional facilities
  inmate populations

10
The Incarcerated Felon Population

• In FY 2003, there were 24,913 total felons
  incarcerated in Tn. (18,436 were in TDOC
  facilities and 6,477 were in local jails)
• In FY 2005, there were 26,035 total felons
  incarcerated in Tn. (19,431 were in TDOC
  facilities and 6,605 were in local jails.

11
Analysis and Issues cont

• Based on the Jail Summary Report for August 2007,
  97.6 of the total capacity within the state was
  reached (26,338 inmates / 26,976 available beds)
• The August 2007 Jail Summary Report also shows
  that 60 counties had inmate populations that
  exceeded 100 of capacity and another 16 county
  jails that were over 90 capacity
• The total number of TDOC Backup inmates in county
  jails according to the August 2007 Report 1,967
  inmates.
• The largest single classification of inmates in
  Tennessee county jails according to the August
  2007 Jail Report Pretrial Felony prisoners,
  8,115 inmates.

12
Recommendations

• Health Care
• Inmate health care costs continue to be a very
  substantial part of the jail operating budget.
  Some counties have been very successful in
  lowering jail medical costs by negotiating with
  local and regional doctors and health care
  facilities for medical services. There are also
  private companies that will provide medical
  services for county jails by providing a doctor
  and around-the-clock nursing staff. Fees for
  these services are based on the daily population
  of the jail and vary across the state. Most of
  these medical services are provided at the jail
  and therefore save the county in transportation
  costs and security risks

13
Analysis and Issues cont

• Tennessee Offender Population
• June 2006
• TDOC facilities..19,429
• Probation41,763
• ISP (Int. Sup. Probat.)967
• Comm. Corr. Grant P..6,396
• Local Jails.6,681

14
Analysis and Issues cont

• State parole violators and State probation
  violators are a growing problem in county jails.
  For parole violators, the State becomes liable
  once the warrant is served. For probation
  violators, TDOC (Tennessee Department of
  Corrections) reimburses counties only after a
  judge has revoked their probation. Keep in mind
  that it may take several days before the inmates
  probation is revoked or before the parole
  violation warrant is served. Meanwhile, the
  county picks up the costs for boarding, feeding,
  and providing health care to the inmate. If the
  States liability began at the point of the
  defendants arrest rather than when violated, or
  when served, the countys costs would decrease.
  The TDOC estimates that probation violators are
  in county jails an average of 75 days before
  getting into court to be officially violated.

15
Probationers and Parolees

• June 30,2004 Probationers.38,684
• June 30,2007 Probationers..45,741 18.24
• June 30,2004 Parolees.8,133
• June 30,2007 Parolees.10,163 24.96
• June 30,2004 Total Offenders..46,817
• June 30,2007 Total Offenders...55,904 19.40

16
Recommendations cont

• The committee recommends that TCSA explore the
  possibility of establishing and implementing a
  statewide, inmate managed health care program,
  using health care rates that have already been
  negotiated and are currently being used by the
  state. Rather than negotiate with every local
  doctor and hospital, county governments would use
  the State of Tennessee TennCare rates for medical
  services or negotiated statewide rates. The
  State of Tennessee has already established these
  rates with several medical providers for state
  employee insurance as well as TennCare enrollees.
  County governments would simply use these
  already established rates, and there would be no
  costs to the state

17
Recommendations cont

• The committee further recommends that counties
  stipulate that doctors prescribing medication to
  inmates use a formulary plan. A formulary is a
  pre-determined list of medicines that provides
  adequate medications for most sicknesses and
  mental illnesses. The doctor or jail nurse
  working under the doctors protocols, would
  examine the inmate, refer to any medical
  information provided by a private physician, then
  prescribe the medications necessary from the
  formulary drug list. Private companies indicate
  that there is the potential to save up to 60 of
  the overall drug costs by using a formulary drug
  list. Jails can purchase prescription drugs from
  formulary pharmacies. (Regardless of whether
  the jail doctor is contracted or a private
  doctor, or an emergency room doctor)

18
Recommendations cont

• The committee also recommends that TCSA
  investigate the possibility of using TDOCs
  existing, statewide, prescription drug formulary
  plan. TDOC uses this formulary plan for all its
  prisons. A statewide formulary plan would save a
  substantial amount of money for most counties.
  Additionally, inmates being transferred from
  jail to jail and then to TDOC would remain on the
  same formulary prescriptions thereby reducing the
  number of complaints and medical lawsuits
• There are also private vendors that will review
  all of the inmate medical bills for accuracy,
  double billing and other errors. These companies
  usually charge for their services on a fee per
  person basis or a percentage contract for the
  service

19
Recommendations cont

• There are vendors that provide a managed type,
  health care option where the county would use
  certain doctors and hospitals in their area to
  provide medical services at a discounted rate.
  Some vendors charge a per person fee and some
  companies contract with the county for a
  percentage of the amount of savings realized by
  using the vendors network of providers

20
Recommendations cont

• Additionally, the committee recommends that
  counties in Tennessee contact vendors for inmate
  dental services. There is at least one vendor
  that travels to various county jails providing
  dental services. Smaller counties could explore
  the possibility of establishing a regional
  agreement with each other. One jail could
  provide space for a dentist office and the
  surrounding counties could transport inmates to
  that location at designated times each month.
  Escape risks would be greatly reduced compared to
  transporting inmates to a private dentist office.
  The costs would vary depending on the number of
  inmates

21
Recommendations cont

• The Jail Board Bill
• The committee recommends that TDOC simplify the
  reimbursement formula. A certified, county jail
  facility that holds state inmates should be paid
  a flat state rate based on inmates per day. It
  is redundant and inefficient to require counties
  in Tennessee to spend hours completing required
  forms when the current rate is capped and does
  not cover the actual expenses of housing state
  inmates. The reimbursement rate to counties in
  Tennessee should be equal to the rate paid to
  Corrections Corporation of America or equal to
  the daily cost to the state for housing inmates.
  It is fundamentally unfair to expect county
  governments to house state inmates in a certified
  county facility and receive less money than
  TDOCs daily costs or CCAs daily costs to keep
  the same inmates

22
Recommendations cont

• TDOC should pay board and medical expenses for
  pretrial detainees that are convicted of felony
  crimes. Counties should be paid for housing
  these pretrial felons back to the point they were
  booked into the jail.
• Probation violators are TDOCs responsibility as
  well. Counties should be paid back to the point
  of booking into the jail for housing probation
  violators.

23
Recommendations cont

• Training
• The training for county jail administrators and
  correctional officers is inadequate. County
  government decision-makers, including sheriffs,
  jail administrators, mayors, and county
  commissioners need more information and training
  regarding county jail operations, particularly in
  regards to inmate medical issues. Very few
  sheriffs in Tennessee have a professional
  corrections background. Currently, TCI requires
  forty hours basic instruction during the first
  year of employment and then requires forty hours
  of in-service training annually thereafter.
  Sheriffs and Jail Administrators should become
  certified in Jail Management. TCSA should
  recommend to the Board of Directors of the
  Tennessee Corrections Institute that a Jail
  Management program be mandated as part of the
  jail certification process. The current training
  for correctional officers should be expanded to
  include medical issues, jail management and
  supervision, professionalism, and the application
  of cost-saving measures. The General Assembly
  passed a law last year that prohibits hiring a
  convicted felon in the county jail. (If hired
  after July1, 2006)

24
Recommendations cont

• Mental Health Transportation
• The committee recommends that TCSA request the
  Department of Mental Health and Developmental
  Disabilities establish a study committee
  consisting of all agencies involved in
  transporting mental health patients from
  emergency rooms to mental health facilities. The
  function of the committee is to discuss and
  recommend laws and policies regarding the
  transportation of mental health patients.
  According the results of the CTAS survey, a
  majority of the mental health transports live
  inside a town or city. TCSA should support
  legislation that places the responsibility of the
  transportation of mental health patients on the
  local government in which the patients resides

25
Recommendations cont

• The Blind Vending Industry
• Tennessee law gives the blind vending industry
  the first right of refusal in government
  buildings for any vending service. TCSA and the
  Tennessee Sheriffs Association should consider
  joining forces in filing legislation that would
  exempt county jail commissaries from the existing
  statute. County jails and workhouses could be
  accepted out of the law just as county
  Departments of Education are excluded in the law
  currently

26
Sources

• Sources for this presentation are
• The Comptrollers Report on Tennessee
  JailsAugust 2003
• CTAS Sheriffs Survey
• Interviews with various Jail Administrators
• Meeting with TCI Director Jerry Abston
• Meeting with Davidson County Sheriff Darren Hall
• Jail Summary Reports from the Tennessee
  Department of Correction

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30
WHO PAYS THE MEDICAL BILLS FOR INMATES IN THE
COUNTY JAIL? Is the county responsible for
providing necessary medical care to prisoners
housed in the county jail or workhouse? Yes.
Under T.C.A. 41-4-115(a), all counties are
required to provide medical care to prisoners
incarcerated in the county jail. Also, the
United States Supreme Court has held that
prisoners have a constitutional right to receive
necessary medical care while in custody. City of
Revere v. Massachusetts General Hospital, 463
U.S. 239 (1983). If the county fails to provide
necessary medical care, it may be liable under 42
U.S.C. 1983 for any injuries the prisoner may
suffer as a result of lack of medical care. Op.
Tenn. Atty. Gen. U90-134.
31
It is the duty of the county legislative body to
provide medical attendance for all prisoners
confined in the county jail. The county
legislative body shall authorize the compensation
of the county jail physician, as agreed upon in
writing between the county and the attending jail
physician, or as may be fixed by the county
legislative body. T.C.A. 41-4-115(a). The
Tennessee Court of Appeals has recognized that it
is the statutory duty of the county legislative
body to furnish the services of a physician to
treat illnesses of inmates. George v. Harlan,
1998 WL 668637, 4 (Tenn.Ct.App. 1998).
32
Pursuant to state regulations, provision of
medical services for the jail is to be the
responsibility of a designated medical authority
such as a hospital, clinic, or physician. There
must be an agreement between the county and the
designated medical authority responsible for
providing the medical services. The designated
medical authority must be notified in instances
where an inmate may be in need of medical
treatment and the jail must document this
notification. Rules of the Tennessee
Corrections Institute, Rule 1400-1-.13(1).
33
Does providing medical care include payment for
the treatment? Not necessarily. As long as
the governmental entity ensures that the medical
care needed is in fact provided, the Constitution
does not dictate how the cost of that care should
be allocated as between the entity and the
provider of the care. That is a matter of state
law. City of Revere v. Massachusetts General
Hospital, 463 U.S. 239 (1983).
34
Can the county require the inmate to pay? Yes.
A county is permitted to collect from a
non-indigent inmate housed in the county jail the
cost of providing needed medical or dental care
to the inmate. However, the county is the party
ultimately responsible for paying providers who
render medical or dental services to county
inmates. Op. Tenn. Atty. Gen. 95-095 (Sept. 15,
1995).
35
How can the county determine whether an inmate is
indigent? There are no specific guidelines to
determine indigence, but the county could have
the inmate sign a pauper's oath similar to the
one set out in T.C.A. 20-12-127. Op. Tenn.
Atty. Gen. U90-134 (Sept. 20, 1990).
36
If an inmate has health insurance, can the
insurance carrier be required to pay? Yes. The
Tennessee Attorney General has opined that if an
inmate has health insurance coverage, there
appears to be no provision of law that would
allow the insurance carrier to avoid paying
covered medical costs solely because the insured
was incarcerated in the county jail at the time
the claim arose. However, an individual loses
eligibility for TennCare upon becoming
incarcerated. Accordingly, TennCare may properly
deny coverage to an individual who is
incarcerated either before or after conviction.
Op. Tenn. Atty. Gen. 97-010 (Feb. 4, 1997).
37
If an inmate has a pre-existing condition which
requires treatment, must treatment be
provided? Yes. If an inmate enters a jail or
workhouse with a pre-existing condition that
requires treatment, the county is responsible for
providing the care. Op. Tenn. Atty. Gen.
U90-134 (Sept. 20, 1990).
38
Who pays the medical expenses of state prisoners
housed in the county jail? The state is liable
for expenses incurred for emergency
hospitalization and medical treatment, provided
that the prisoner is admitted to the hospital.
T.C.A. 41-4-115(b). For non-emergency
treatment, payment is a matter to be resolved
between the county and the medical provider. If
the county does incur non-emergency medical
expenses on behalf of a state prisoner, the
county may seek reimbursement from the prisoner.
Op. Tenn. Atty. Gen. 89-133 (Oct. 4, 1989).
39
Who pays the medical expenses of persons arrested
by city police for violation of a municipal
ordinance and placed in the county jail? There
is no general statutory authority in Tennessee
for either the pre-trial or post-trial
incarceration of persons arrested solely for
municipal ordinance violations, and in the
absence of a private act or a valid contract
between the city and the county providing for
such incarceration, the incarceration of these
prisoners would be unauthorized by law. Op.
Tenn. Atty. Gen. 90-94 (Oct. 9, 1990) Op. Tenn.
Atty. Gen. 84-308 (Nov. 19, 1984) Op. Tenn.
Atty. Gen. U85-065 (Dec. 2, 1985).
40
Since a county is not required by general law to
accept municipal ordinance violators, the
liability for medical expenses is a matter which
should be addressed in the private act or
contract authorizing the incarceration. If it is
not, the county will be responsible for payment
because the governmental entity with custody of
the person at the time treatment is given is
financially responsible for the medical
treatment, absent an agreement to the contrary.
See Op. Tenn. Atty. Gen. U91-01 (Jan. 7, 1991).
41
Is the county responsible for medical care to
persons in the custody of a city? No. Unless
and until the prisoner has been delivered into
the custody of the county, the county is not
responsible. If a city officer takes a
prisoner to the hospital prior to delivering the
prisoner to the county jail, the county is not
responsible for payment of the medical costs.
Similarly, the county is not responsible for
medical care provided to prisoners held in a city
jail. See Op. Tenn. Atty. Gen. U91-01 (Jan.
7, 1991).
42
Can a county require an arresting city officer to
take a prisoner for medical examinations prior to
accepting the prisoner at the county jail? No.
A county jail must accept all persons arrested
pursuant to law by the sheriff or municipal
police officers. Op. Tenn. Atty. Gen. No.
02-015 (Feb. 6, 2002). Additionally, the jailer
is required to receive all persons arrested by
officers of the Tennessee Department of Homeland
Security and TVA peace officers. T.C.A.
38-3-114 and 38-3-120.
43
The jailer cannot refuse acceptance of an
arrestee who complains about a medical problem or
has an obvious injury needing medical attention.
Op. Tenn. Atty. Gen. No. 02-015 (Feb. 6, 2002).
A county jailer cannot require an arresting
city police officer to take a prisoner for
medical examinations prior to being accepted by
the jailer after a mittimus has been issued the
jailer must receive the prisoner. Op. Tenn.
Atty. Gen. No. U91-01 (1991).
44
What can a county do to reduce its costs for
medical care for prisoners? Review current
procedures relative to inmates medical care with
the county attorney to determine what changes
need to be made. Check any agreement you may
have with a city for incarceration of municipal
offenders and make certain that the city is
required to to pay the cost of medical treatment.
Talk with your local hospital and others who
provide treatment for your inmates.
45
What can a county do to reduce its costs for
medical care for prisoners? Try to work out an
agreement whereby the hospital or other provider
will attempt to determine if an inmate has
insurance or other means of payment for treatment
and if so, attempt to collect from the inmate.
For indigent inmates for whom the county must
pay, follow up after the inmates release and
attempt to collect the cost of medical care
provided. Talk with your county attorney about
collection procedures.
46
T.C.A. 41-4-115. Medical care of
prisoners. (a) The county legislative bodies
alone have the power, and it is their duty, to
provide medical attendance upon all prisoners
confined in the jail in their respective
counties. The county legislative bodies shall
allow the county jail physician such
compensation, to be paid by their respective
counties, as may be fixed by the county
legislative body agreed upon in writing between
the county and the attending jail physician, or
as may be fixed by the county legislative
body. (b) The state shall be liable for expenses
incurred from emergency hospitalization and
medical treatment rendered to any state prisoner
incarcerated in a county jail or workhouse,
provided such prisoner is admitted to the
hospital. The sheriff of the county in which such
state prisoner is incarcerated shall file a
petition with the criminal court committing such
state prisoner to the county jail or workhouse
attaching thereto a copy of the hospital bills of
costs for such state prisoner. It is the duty of
the court committing such state prisoner to the
county jail or workhouse to examine bills of
costs, and if the costs are proved, the court
shall certify the fact thereon and forward a copy
to the judicial cost accountant. The expenses for
such emergency hospitalization and/or medical
treatment shall be paid in the same manner as
court costs. Claims for incidents occurring after
March 1, 1977, shall be reimbursed if otherwise
authorized by this subsection (b).
47
(c) The state shall be responsible for the
transportation costs and cost of any guard
necessary upon a state prisoner's admission to a
hospital or required follow-up treatment. Such
reimbursement shall be made according to the
procedures established by 41-8-106, but shall
be in addition to the per diem established in
41-8-106. (d) Any county or municipality may, by
resolution or ordinance adopted by a two-thirds
(2/3) vote of its legislative body, establish and
implement a plan authorizing the jail or
workhouse administrator of such county or
municipality to charge an inmate in such jail or
workhouse a co-pay amount for any medical care,
treatment or pharmacy services provided to such
inmate by the county or municipality. The county
or municipality adopting the co-pay plan shall
establish the amount the inmate is required to
pay for each service provided. Nothing in this
subsection (d) shall be construed as authorizing
a county or municipality to deny medical care,
treatment or pharmacy services to an inmate who
cannot pay the co-pay amount established by the
plan. (e) If an inmate cannot pay the co-pay
amount established by a plan adopted pursuant to
subsection (d), such plan may authorize the jail
or workhouse administrator to deduct the co-pay
amount from such inmate's commissary account or
any other account or fund established by or for
the benefit of such inmate while incarcerated.
48
(f) Notwithstanding any other provision of law to
the contrary, a plan established pursuant to
subsection (d) may also authorize the jail or
workhouse administrator to seek reimbursement for
the expenses incurred in providing medical care,
treatment, hospitalization or pharmacy services
to an inmate incarcerated in such jail or
workhouse from an insurance company, health care
corporation, TennCare or other source, if the
inmate is covered by an insurance policy,
TennCare or subscribes to a health care
corporation or other source for those expenses.