Managed Health Care in Prisons as Cruel and Unusual Punishment

Robbins, Ira P., Journal of Criminal Law and Criminology

I. INTRODUCTION

Billy Roberts, a prisoner in an Alabama state prison, had a history of severe psychiatric disorders.(1) He was often put on suicide watch, and received large doses of psychotropic drugs.(2) A managed health care company, Correctional Medical Services (CMS), was responsible for the health care at the prison.(3) After Roberts had a suicidal episode, CMS's statewide mental health care director reportedly put Roberts in an isolation cell rather than a psychiatric care unit.(4) The mental health care director also ordered that Roberts' medication be discontinued pursuant to an alleged policy of CMS to get as many prisoners off psychotropic drugs as possible in order to keep costs down.(5) Six days later, Billy Roberts hanged himself.(6)

This is not an isolated case. In an effort to cut costs or to provide constitutionally adequate health care to inmates, an increasing number of prisons have been using managed care systems to provide health care.(7) Although the use of managed care has saved states money, the quality of health care arguably has decreased. Inadequate care has been a recurring problem in prisons run by private managed health care firms. Consequently, prisoners and staff continue to complain, and prisoners are filing suits asserting that their constitutional rights have been violated.(8)

Courts have evaluated claims of constitutional violations in cases in which prisoners have challenged the adequacy of their medical treatment under the "deliberate indifference" standard, first announced by the Supreme Court in 1976, in Estelle v. Gamble.(9) In Estelle, the Supreme Court established that, when prison officials are deliberately indifferent to the serious medical needs of prisoners, the prisoners' Eighth Amendment right to be free from cruel and unusual punishment has been violated.(10) In Ancata v. Prison Health Services,(11) for example, the United States Court of Appeals for the Eleventh Circuit held that, "if necessary medical treatment has been delayed for non-medical reasons, a case of deliberate indifference has been made out."(12) Financial considerations constitute "non-medical reasons."(13) Thus, the use of managed care in prisons with the intent of cutting costs may constitute an institutional deliberate indifference on the part of the prisons.

This Article examines the use of managed care in prisons and discusses some of the legal issues surrounding managed care practices. The Article argues that the use of managed care may result in an overemphasis on costs that in certain instances rises to the level of deliberate indifference, thereby violating the Eighth Amendment.

II. MANAGED HEALTH CARE IN PRISONS

The goal of managed health care is to have a health care system that operates more cost-effectively than the traditional fee-for-service system.(14) In managed health care systems, however, this goal is often achieved through cost-cutting measures.(15) Thus, managed health care can result in inadequate treatment for patients. Concerns regarding inadequate health care are magnified in a prison setting, in which inmates have no choice about health care and cannot seek outside advice. They are left to the discretion of the health care provider chosen by the county or state.(16) In addition, since prisoners themselves are not usually paying customers,(17) health care providers have even less of an incentive to provide quality care.

To understand how managed health care works in prisons, it is first necessary to consider why counties or states would choose managed health care for their prisons. While some of the reasons are logistical, the primary concern is always financial.(18)

A. MANAGED CARE

There are three major components of a managed care system: (1) the managed care organization (MCO), which acts as an insurer and finances the health care of the members of its health care plans;(19) (2) the health care provider, which can be a physician, a group of physicians, a hospital, or a physician-hospital association;(20) and (3) the health plan member or patient.(21)

Managed health care evolved as a reaction by health care consumers and the federal government to rapidly escalating health care costs under the traditional fee-for-service system.(22) The term "managed care" generally refers to a variety of administrative and treatment practices that attempt to improve the quality, efficiency, and cost-effectiveness of the health care system.(23) Although virtually all forms of health insurance now incorporate managed care to some degree,(24) for-profit MCOs are at the forefront in the application of managed care practices.(25) Because MCOs compete with one another to offer the lowest monthly fees to consumers, they must control health care costs through policies designed to reduce both the cost and the amount of care provided.(26)

Because MCOs contract with employers for a fixed per-patient or per-incident fee, the MCO assumes the financial risk that costs will exceed that fixed amount.(27) For this reason, MCOs have a great incentive to minimize high-cost treatments, particularly those that require hospitalization or the consultation of specialists.(28) Because many MCOs pass the risk along to health care providers through fixed fees, doctors and other health care professionals face similar incentives to provide less treatment at a lower cost.(29) However, the risk that the provision of a low quality of care will cause the MCO to lose its contract with the consumer, or the provider to lose its contract with the MCO, acts as a counter-balance to incentives to cut costs to a point at which the quality of care becomes unsatisfactory to consumers.(30) Nevertheless, there is a strong concern that, left to its own devices, the market will not strike an acceptable balance between cost and quality in the provision of health care.(31)

One way that managed care controls costs is through a utilization review strategy.(32) MCOs oversee the decisions made by health care providers in order to ensure that the providers are conforming to the standards set by the MCO.(33) If the providers do not conform to these standards, they can suffer financial penalties.(34)

While there may be some debate whether managed care provides better or worse care for the patient,(35) it is clear that managed care provides less care to patients and prevents health care providers from using additional treatments and unproven medical intervention.(36) One of the positive aspects of managed care is that the application of business principles can reduce health care expenditures and thus allow a greater number of individuals to receive health insurance by keeping premiums low.(37) In addition, unnecessary treatments and unnecessary hospitalization are sharply reduced.(38) Managed care also encourages the use of preventive care, as patients are forced to rely more on primary care physicians.(39)

On the other hand, doctors make less money than they do under the fee-for-service system.(40) Moreover, as described above, MCOs second-guess doctors' judgments, as doctors need to get approval from MCOs for tests and surgical procedures.(41) In this way, managed care can undermine the role played by doctors in treatment decisions by compromising medical considerations with financial concerns, thereby lowering the standard of care.

B. MANAGED HEALTH CARE IN PRISONS

Managed health care in prisons is conspicuously different from managed health care on the outside. First, the general prison population is usually less healthy than the general population.(42) Second, the quality of health care in prisons is usually lower than the quality of health care provided to the portion of the outside population covered by managed care.(43) Third, the patients in a prison setting have no choice regarding health plans; they must take the plan provided for them.(44) Fourth, if the health care provider in the prison refuses to provide treatment, it is difficult, if not impossible, for the prisoner to get treatment elsewhere.(45)

In its structure, however, prison managed care is the same as general managed care. MCOs hire health care providers and supervise their provision of health care the same way in prisons as they do in general managed care.(46) Ultimately, the focus is on efficiency and cutting costs, since the primary goal of MCOs is enhancing the financial bottom line.(47) This goal often results in treatment decisions that are based less on the inmates' needs and more on saving money.(48)

1. The Different Companies

To date, there are fourteen private sector firms that provide inmate health care.(49) Approximately twenty-nine states have managed care in all or part of their prison health care systems.(50) The two main companies that provide correctional managed health care are American Service Group, Inc. (ASG)(51) and CMS.(52) CMS has contracts that provide care "to more than 268,600 inmates at 348 correctional facilities in 30 states."(53) ASG, the parent company of Prison Health Services, Inc. (PHS) and EMSA Correctional Care, Inc. (EMSA),(54) manages health care for more than "134,000 inmates in 25 states."(55) Prior to ASG's acquisition of EMSA in 1999, EMSA claimed to "cover" 71,000 inmates in 19 states.(56) PHS has been providing health care in prisons since 1978, and claims to be "the founder of the managed correctional healthcare industry."(57)

2. Contracts for Services

Prisons may contract out a variety of health services. For example, the contract for Texas Correctional Managed Health Care demonstrates the typical arrangement in a prison managed care system.(58) In this contract, Texas state universities provide complete medical services to the prisons.(59) The contract contains a fee-per-offender provision that limits the amount the health care provider must spend on each inmate.(60) The fee-per-offender varies with respect to "the services provided and the differences in demographics and health status of the inmates."(61) Other forms of service contracts are more limited and provide only specific off-site services, such as dental care or psychological care.(62)

3. Accreditation Standards

There are some non-governmental means of ensuring the quality of care provided by a correctional managed care entity. One such means is accreditation. Accreditation of prison managed care systems is governed by the National Commission on Correctional Health Care (NCCHC). Accreditation is by no means mandatory; it merely provides companies with a seal of approval to help them attract business.(63) NCCHC encourages correctional facilities to have their health care provision systems accredited whether they are operated by the state or by a private MCO.(64)

The process for receiving NCCHC accreditation is not stringent. It consists of completing a Self-Survey Questionnaire and having an accreditation site visit.(65) The NCCHC assures prospective accreditees that the site visit will be "scheduled only when you feel you are ready."(66) The NCCHC examines the following areas: "facility governance and administration, managing a safe and healthy environment, personnel and training, health care services support, inmate care and treatment, health promotion and disease prevention, special [inmates'] needs and services, health records, and medical legal issues."(67) Thus, the accreditation provides for external peer review to ensure that correctional health care systems meet certain standards for the provision of health services.(68)

NCCHC accreditation may be beneficial to the companies, but it ensures only a basic level of care in prisons.(69) However, judicial standards on health care in prisons impose more rigorous requirements on MCOs. The United States Supreme Court, through a series of cases, has specified "deliberate indifference" as the threshold for prison health care.(70) MCOs that are deliberately indifferent to prisoners' serious medical needs will be held to have violated the Eighth Amendment.

III. THE "DELIBERATE INDIFFERENCE" STANDARD

A. HISTORY OF THE STANDARD

In 1976, the Supreme Court established the "deliberate indifference" standard for Eighth Amendment claims of unconstitutional prison health care in Estelle v. Gamble.(71) In Estelle, the respondent, J.W. Gamble, was injured while performing a prison work project.(72) He complained that the treatment he received after the injury was inadequate and filed a civil rights action under 42 U.S.C. [sections] 1983.(73) One month after Gamble received his injury, the treating doctor certified him as capable of light work.(74) Over the next two months, Gamble was brought before the prison disciplinary committee for failure to work, even though he continued to complain about back and chest pains.(75) On a constitutional challenge to the health care that had been provided to Gamble, the Supreme Court held that [sections] 1983 and Eighth Amendment principles required the government to provide medical care for those whom it incarcerates, and announced that "deliberate indifference to serious medical needs of prisoners" was the standard for [sections] 1983 claims.(76) The Court ruled that deliberate indifference can be committed either by prison doctors or by prison guards.(77)

In 1991, in Wilson v. Seiter,(78) the Supreme Court extended the deliberate indifference standard to conditions of confinement.(79) In so doing, the Court developed a two-part test for determining deliberate indifference:(80) the prisoner must demonstrate an objective component--"sufficiently serious" deprivation--and a subjective component--that the prison official had a "sufficiently culpable state of mind" that demonstrated deliberate indifference to the prisoner's safety.(81)

Three years later, in Farmer v. Brennan,(82) the Court further developed Wilson's test, holding that the second part of that test created a subjective standard of deliberate indifference.(83) The Court stated that liability of the prison official cannot be established unless: (1) "the official knows of and disregards an excessive risk to inmate heath or safety"; (2) "the official [is] aware of facts from which the inference could be drawn that a substantial risk of serious harm exists"; and (g) "[the official draws] the inference."(84) The Court also held that a prison official can be found to have been aware if the substantial risk is obvious.(85) The Court stated, for example, that a plaintiff could present evidence that the risk of an attack was "`longstanding, pervasive, or expressly noted by prison officials in the past.'"(86)

In applying the subjective component to determine whether medical care violates the deliberate indifference standard, courts focus on the obviousness of the risk.(87) A court needs to ascertain whether the prison official had a "sufficiently culpable state of mind";(88) the court must look at the events as the prison official may have seen them. Courts should examine whether the prisoner's medical condition was noted by other prison officials or doctors.(89) Courts should also consider factors such as "the severity of the medical problem, the potential for harm if medical care is denied or delayed and whether any such harm actually resulted from the lack of medical attention."(90)

In McNally v. Prison Health Services, Inc.,(91) for example, the Federal District Court in Maine denied a prison's motion to dismiss. The prisoner alleged a [sections] 1983 violation for inadequate medical care when he was denied HIV medication while a pretrial detainee.(92) The court stated that "deliberate indifference is more than negligence."(93) The court also stated that "`when a supervisory official is placed on actual notice of a prisoner's need for ... medical care, administrative negligence can rise to the level of deliberate indifference.'"(94) In this instance, where the prisoner told PHS of his need to take medication immediately, his doctor confirmed his HIV diagnosis, and the prisoner was suffering from obvious physical symptoms, the court held that it could be inferred that PHS was subjectively aware that the prisoner required medical care.(95)

There have been many challenges to the adequacy of prison medical care under the deliberate indifference standard.(96) The plaintiff in a [sections] 1983 claim must show that the injury in question was inflicted by state actors and that the injury involved a deprivation of rights secured by the Constitution and the laws of the United States.(97)

B. LIABILITY OF INSTITUTIONAL DEFENDANTS

Municipalities can be found liable for their official policies and customs. The liability of a municipality under [sections] 1983 may not be based on the doctrine of respondeat superior.(98) Municipalities can be held liable only for acts that constitute a government custom or policy.(99) Liability is not limited to …

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Publication information: Article title: Managed Health Care in Prisons as Cruel and Unusual Punishment. Contributors: Robbins, Ira P. - Author. Journal title: Journal of Criminal Law and Criminology. Volume: 90. Issue: 1 Publication date: Fall 1999. Page number: 195. © 1998 Northwestern University, School of Law. COPYRIGHT 1999 Gale Group.

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