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 jailer’s 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 defendant’s 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……… • Tennessee’s 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 60counties 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 • Probation………………41,763 • 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 inmate’s 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 State’s liability began at the point of the defendant’s arrest rather than when violated, or when served, the county’s 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 TDOC’s 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 vendor’s 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 TDOC’s daily costs or CCA’s 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 TDOC’s 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 Comptroller’s Report on Tennessee Jails—August 2003 • CTAS Sheriff’s 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

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. [A]s 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 inmate’s 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.