[Federal Register Volume 70, Number 142 (Tuesday, July 26, 2005)]
[Rules and Regulations]
[Pages 43047-43050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14636]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 549

[BOP-1111-F]
RIN 1120-AB11


Inmate Fees for Health Care Services

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: The Bureau of Prisons (Bureau) finalizes rules describing 
procedures we will follow for charging inmates fees for certain kinds 
of health services, as required under the Federal Prisoner Health Care 
Copayment Act of 2000 (Pub. L. 106-294, October 12, 2000, 114 Stat 
1038, codified at 18 U.S.C. 4048).

DATES: This rule is effective on October 3, 2005. We will not implement 
the provisions of this rule until 30 days after we have given notice of 
these rules to inmates in our custody, as required by 18 U.S.C. 
4048(i).

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons, 
320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION: Under the Federal Prisoner Health Care 
Copayment Act of 2000 (Pub. L. 106-294, October 12, 2000, 114 Stat 
1038, codified at 18 U.S.C. 4048) (Act), the Bureau of Prisons (Bureau) 
may assess and collect a fee for health care services provided in 
connection with certain kinds of inmate health care visits. In this 
document, we finalize our proposed rule which was published on October 
10, 2002 (67 FR 63059) describing procedures we will follow for 
charging inmates health service fees for certain kinds of health care 
services.

Response to Comments

    We received 42 comments on our proposed rules. One commenter 
supported the rule. Eight of the comments were copies of one form 
letter, and another thirteen comments were copies of a second form 
letter. These and the other twenty commenters raised identical or 
similar issues. We will therefore address each issue raised.

The Fee Will Unduly Burden Family Members of Inmates

    Four commenters expressed concern that the fee would unduly burden 
family members of inmates.
    These comments failed to specify how family members of inmates 
would bear the ``burden'' of health service fees. If an inmate is 
classified as indigent and has no funds with which to pay the fee, no 
fee will be imposed, even though the inmate will still receive 
necessary health services. There is no apparent cost, therefore, to the 
inmate's family, who are not required to replenish the inmate's account 
for the purpose of paying health service fees.

The $2 Fee Is Too High

    Twenty-six commenters felt that the $2 fee amount is too high for 
inmates. One commenter suggested that, since the statute requires that 
the fee be ``not less than $1.00,'' the fee should be only $1 instead 
of $2.
    The Committee Report accompanying the Act states that ``[t]he 
amount of the fee is to be determined by the Director of the Bureau of 
Prisons through regulation.'' H.R. Rep. No. 106-851, at 12 (2000). 
Determination of the fee amount is in the Director's discretion. The 
Director has determined that a $2 fee is reasonable and is the smallest 
fee practicable when accounting for the technicalities of processing 
fees collected for health services.
    The Bureau had initially considered a $10 fee. However, when 
determining the fee amount, the Bureau surveyed amounts charged by 
states adopting similar policies. Most states that charge a fee for 
health services impose between $3 and $10 for an inmate-initiated 
visit, such as Arizona (Ariz. Rev. Stat. Sec.  31-161 (2003)), New 
Hampshire (N.H. Rev. stat. Ann. Sec.  622:31-a (2003)), California 
(Cal. Penal Code Sec.  5002.5 (2003)), Delaware (Del. Code Ann. tit.1, 
Sec.  6536 (2003)), Maryland (Md. Code Ann., Corr. Serv. Sec.  2-118 
(2003)), Ohio (Ohio Rev. Code Ann. Sec.  5120.56 (2002)), and North 
Dakota (N.D. Cent. Code Sec.  12-44.1-12.1 (2003)). In fact, the 
Bureau's fee is less than the majority of state fees charged for 
similar purposes.
    One commenter recommended that we allow one inmate-initiated health 
care visit per month with no fee to defray the impact of the fee. This 
suggestion misunderstands the intent of the rule. Outside of 
institutions, individuals are not permitted one free health care visit 
per month. We intend this rule to more accurately reflect life outside 
the institution, thereby encouraging inmate fiscal responsibility.

Administrative Costs Outweigh Fee Income

    Nine commenters argued that the cost to the Bureau of recordkeeping 
and transferring funds related to the health service fee outweighs the 
savings resulting from decreased sick-call visits through fee 
imposition.
    The purpose of the rules is to decrease inmate misuse of health 
services and to encourage fiscal responsibility, not to increase Bureau 
funding. Any money gained through fees will not be retained by the 
Bureau. 18 U.S.C. 4048(g)(2) indicates that 75% of amounts collected 
must ``be deposited in the Crime Victims Fund established under section 
1402 of the Victims of Crime Act of 1984 (42 U.S.C. 10601)'' and the 
remaining 25% must ``be available to the Attorney General for 
administrative expenses incurred in carrying out this section.'' The 
25% reserved for administrative expenses under this subsection goes 
towards administrative costs associated with dispensing fee amounts to 
the Crime Victims Fund, and is not kept by the Bureau.
    Also, among States and localities that have imposed these fees, 
reductions in sick call visits from 16 to 50 percent have been 
realized. In a report included with the legislative history of the Act, 
the GAO concluded that use of a health care co-payment fee system would 
reduce the number of unnecessary medical visits in the Federal prison 
system, perhaps reducing overall visits by as much as 25 percent. H.R. 
Rep. No. 106-851, at 6 (2000), referencing Federal Prisons: Containing 
Health Care Costs for an Increasing Inmate Population, No. GAO/T GGD 00 
112, at 3 (April 6, 2000).
    Further, according to the legislative history of the Act, the 
Congressional Budget Office (CBO) expects that imposing such fees would 
reduce the demand for health care services from Federal prisoners. CBO 
determined that the reduction in demand would result in possible net 
savings of up to $5 million annually over the 2001-2005 period, 
assuming that future appropriations are reduced to reflect the lower 
health care costs. H.R. Rep. No. 106-851, at 9 (2000).

Administrative Process Ineffective to Contest Fee

    One commenter felt that the administrative remedy process is 
ineffective (because of length of time required and the nature of 
medical problems) to contest a $2 health service fee.

[[Page 43048]]

    If the nature of an inmate's medical problem requires immediate 
care, such as for an emergency, or if an inmate is found to be 
indigent, that inmate will still receive the health care he or she 
needs. We will not refuse to provide care for an inmate in any 
situation, even if the inmate contests the applicability of the fee. If 
an inmate decides to contest the fee through the administrative remedy 
process, we will not withhold health care services while the 
administrative remedy claim is pending resolution.

Notice of These Rules Not Given

    An inmate commenter stated that there was no written or oral notice 
of this rule given, ``as required by statute''.
    Notice to inmates of this proposed rulemaking under 18 U.S.C. 
4048(j) was given to inmates, as required by the statute, as evidenced 
by this commenter's ability to comment. Also, we accepted comments to 
the proposed rulemaking approximately 2 months after the official close 
of the comment period on December 9, 2002. Further, we will issue the 
notice required by 18 U.S.C. 4048(i) 30 days before implementing the 
rules and policy requiring a health service fee.

Rules May Cause Further Health Problems

    Twenty-eight commenters stated that if an inmate with a contagious 
disease fails to seek medical attention, simply to save the $2 health 
service fee, the Bureau may incur more healthcare costs when other 
inmates and staff become infected.
    An inmate who is sick but chooses not to seek medical attention 
because he or she does not wish to pay the fee does not pose a 
significant health risk to other inmates or staff, nor does it pose a 
significant financial risk to the Bureau. The Bureau already has 
screening mechanisms in place that would prevent the spread of serious 
contagious diseases. For example, the Bureau has initial intake 
screening for acute, chronic, mental health and infectious diseases. 
Also, we require mandatory annual screening for tuberculosis and annual 
medical examinations for inmates employed in the food service area. 
Inmates with chronic illnesses such as diabetes, hypertension, thyroid 
disease, psychiatric illness, etc., are examined at least four times a 
year as a non-inmate-initiated visit which would not necessitate 
imposition of a health service fee.
    In the Bureau's health care delivery system, each inmate is 
assigned to a specific health care provider who is responsible for the 
inmate's on-going health care needs. Each inmate is periodically 
evaluated by the provider, who is responsible for knowing the 
circumstances and situation of each of his/her patients. These periodic 
evaluations are staff-initiated visits which do not trigger the $2 
copay fee. Also, as an example of infectious disease detection, an 
inmate who has been exposed to TB but does not actually have active TB 
will be evaluated every 90 days.
    It would be difficult for an inmate to have an infectious disease 
for a long time without detection by either the provider assigned to 
that inmate or staff who interact on a daily basis with that inmate. 
All staff receive mandatory annual training on the signs and symptoms 
of infectious diseases. Any staff member can refer an inmate to health 
services if there appears to be a problem with the inmate's health. If 
a staff member notices that an inmate looks unhealthy and refers that 
inmate to the doctor, that visit does not trigger the $2 copay fee 
under the new regulations.

Rules Violate Due Process Rights

    One commenter stated that to deny inmates health care without a 
hearing is violating their right to due process. The commenter alleges 
that the rules violate the Due Process Clause of the Fourteenth 
Amendment of the Constitution.
    We believe that this commenter means to allege a violation of the 
Fifth Amendment to the Constitution, which constrains the power of the 
Federal Government to deprive any person ``of life, liberty, or 
property, without due process of law,'' just as the Fourteenth 
Amendment imposes comparable constraints on the power of the States. 
See U.S. v. Balsys, 118 S.Ct. 2218, at 2236 (1998); Bolling v. Sharpe, 
74 S.Ct. 693 (1958). We therefore respond as though the comment alleged 
a violation of the Fifth Amendment.
    Although inmates have a property interest in the funds in their 
inmate account, the ``process due,'' for health service fees has been 
found by many courts to be minimal. Courts have found that as long as 
inmates are notified that there will be deductions from their accounts 
for these types of health service fees and that there is an avenue to 
appeal the fees, no further process is required. Johnson v. Department 
of Public Safety, 885 F.Supp. 817 at 821 (D.MD. 1995); Scott v. 
Angelone, 771 F.Supp. 1064, 1067-68 (D. Nev.1991) (inmate was not 
denied due process of law when his account was charged for medical 
visits because he had prior notice of the policy, authorized the 
charges and was reimbursed for erroneous charges), aff'd, 980 F.2d 738 
(9th Cir. 1992); Gardner v. Wilson, 959 F.Supp. 1224 at 1229 (C.D. CA. 
1997); Bailey v. Carter, No. 99-4282, 2001 WL 845446 (6th Cir. 2001).
    Also, inmates are not ``deprived'' of health care. If they cannot 
pay the fee because they are indigent, or if they require emergency 
treatment or otherwise fall within the exceptions listed in Sec.  
549.72, we will still provide them with necessary health services.

Rules Violate the Eighth Amendment

    Fifteen commenters felt that it is unconstitutional to be charged 
for health services while under the Bureau's care. One stated that 18 
U.S.C. 4032 guarantees Federal inmates free medical treatment, and that 
this rule violates the Eighth Amendment of the Constitution.
    The Eighth Amendment of the Constitution prohibits cruel and 
unusual punishment. With respect to prison medical care, this provision 
requires that the government and its actors refrain from ``deliberate 
indifference to an inmate's serious medical needs.'' Estelle v. Gamble, 
429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Courts 
typically define ``deliberate indifference'' as treatment ``so grossly 
incompetent, inadequate, or excessive as to shock the conscience or to 
be intolerable to fundamental fairness.'' Miltier v. Beorn, 896 F.2d 
848, 851 (4th Cir. 1990). See also Rogers v. Evans, 792 F.2d 1052, 1058 
(11th Cir. 1986).
    The Bureau's co-pay rules do not represent treatment that ``shocks 
the conscience.'' The rules contain several exceptions to avoid 
imposing unnecessary hardship on indigent, or seriously ill inmates. 
Our intent is that the rules will only repeatedly affect those inmates 
who abuse prison medical services with frequent visits for minor 
complaints. Also, because no inmate will be refused treatment for an 
inability to pay, our rules will not result in a denial of care, even 
for inmates who abuse the system.
    Several courts have concluded that co-pay requirements for prison 
medical services are constitutional. Similar policies have been 
challenged and upheld under the Eighth Amendment. See Johnson v. 
Department of Public Safety, 885 F.Supp. 817 at 820-821 (D.MD. 1995); 
Gardner v. Wilson, 959 F.Supp. 1224 at 1227-1228 (C.D. Cal. 1997); 
Martin v. DeBruyn, 880 F.Supp. 610 at 612 (N.D. Ind. 1995); Bailey v. 
Carter, No. 99-4282, 2001 WL 845446 (6th Cir. 2001); Shapley v. Nevada 
Bd.

[[Page 43049]]

of State Prison Comm'rs, 766 F.2d 404, 408 (9th Cir. 1985).

Rules Violate Article I of the Constitution

    One commenter stated that the rule should not apply retroactively 
(to inmates already sentenced) but only to new inmates, because it 
amounts to additional punishment. This commenter appears to allege that 
the rules violate Article I of the Constitution, which provides that 
neither Congress nor any state shall pass an ex post facto law. Art. I, 
section 9, cl. 3; Art. I, section 10, cl. 1.
    Courts have stated that ``the constitutional prohibition on ex post 
facto laws applies only to penal statutes which disadvantage the 
offender affected by them.'' Collins v. Youngblood, 497 U.S. 37, 41, 
110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990). Generally, an ex post 
facto law ``punishes as a crime an act previously committed, which was 
innocent when done, which makes more burdensome the punishment for a 
crime, after its commission, or which deprives one charged with crime 
of any defense available according to law at the time when the act was 
committed * * *.'' Collins, 497 U.S. at 42, 110 S.Ct. at 2719 (quoting 
Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 
(1925)); see also Gardner v. Wilson, 959 F.Supp. 1224 at 1230 (C.D. 
Cal. 1997).
    Our rule is not an ex post facto law. It is not a criminal statute 
which disadvantages a criminal offender. These rules do not redefine 
inmates' crimes or increase inmates' punishment for criminal acts. 
Also, we do not intend to apply this rule retroactively to events 
occurring before the date of effectiveness; instead, we will apply the 
rule only to qualifying health care visits that occur well after 
inmates have been given notice of this rule, as required by the Act (18 
U.S.C. 4048(i)).

Current Medical Care Is Unsatisfactory

    Twenty-two commenters complained that the current level of medical 
care is unsatisfactory.
    The healthcare mission of the Bureau of Prisons is to provide 
appropriate and necessary medical, dental and mental health services to 
inmates by professional staff. All BOP institutions operate outpatient 
ambulatory care clinics which are accredited by the Joint Commission on 
the Accreditation of Healthcare Organizations (JCAHO), the nation's 
predominant standards-setting and accrediting body in health care.
    Each BOP facility has a Health Services Department, typically 
staffed with a physician(s) and several mid-level providers, such as 
physician assistants and nurse practitioners, along with technical and 
administrative staff. Most Health Services Departments conduct ``sick-
call'' four or more days per week for the entire inmate population, and 
all have 24 hour emergency coverage. All inmates entering our 
facilities are thoroughly screened by medical staff for physical and 
mental health conditions, and are monitored thereafter through follow-
up appointments and chronic care clinics, as necessary. Inmates who 
cannot be medically managed as outpatients in our correctional 
facilities may be designated to one of the BOP's Federal Medical 
Centers, located throughout the country.

Staff Will Abuse Rules

    Two commenters argued that there is potential for staff to abuse 
the rules by refusing to refer an inmate for a health service visit or 
by charging them even when they are exempt from the fee under the rule.
    Bureau staff are held to the highest standard of professionalism. 
Although it is arguable that there is always potential for abuse of any 
rule or staff requirement, the Bureau conducts program reviews and 
quality control inspections frequently to ensure staff compliance with 
rules and policy. If an inmate is aggrieved by what he or she perceives 
as staff abuse of the rules, that inmate should take advantage of our 
administrative remedy procedures (28 CFR part 542).

DC Interstate Corrections Compact

    Thirteen commenters felt that imposing fees on D.C. Code felony 
offenders violates the Interstate Corrections Compact, D.C. Code Sec.  
24.1001, Article I, Article III(A)(1)-(6).
    The Interstate Corrections Compact, Article III(a)(1)-(6) does not 
apply to the Bureau. The Compact addresses arrangements made between 
the District of Columbia or the Federal Government and any State, and 
does not impose direct obligations on the Federal Government. Instead, 
it describes that such arrangements must provide for several points of 
inmate care, such as ``payments to be made to the receiving State or to 
the Federal government, by the sending State for inmate maintenance, 
extraordinary medical and dental expenses, and any participation in or 
receipt by inmates of rehabilitative or correctional services, 
facilities, programs, or treatment not reasonably included as part of 
normal maintenance.''
    The Compact, therefore, does not require that the Federal 
Government pay the cost of inmate maintenance, nor does it preclude 
inmate health service fees. The Compact only requires that any contract 
between the State and the Federal Government for the care of State 
inmates must address the subject of payment for health care. Therefore, 
this rule does not violate the Compact.

Issues Not Covered in Rules

    Four commenters stated that there is no definition of ``indigent'' 
for the purposes of this rule. Bureau policy will define ``indigent'' 
inmates as those who had a trust fund account balance of less than $6 
for the thirty days before the date of the health service provided.
    One commenter complained that the rules do not specifically address 
dental care. The Bureau's policy that will accompany these rules and be 
accessible in inmate law libraries will state that health services 
include medical, mental health and dental care services.
    Another commenter stated that there is no definition of 
``emergency'' situations in which no fee is imposed. Bureau policy 
defines ``emergency'' situations as the delivery of care that is 
``medically mandatory,'' deemed necessary to maintain or treat a life-
threatening illness or injury. Health Services employees are aware of 
that longstanding definition and will use it to determine whether to 
charge a fee.
    The same commenter stated that there is no definition of ``chronic 
infectious disease'' for which no health service fee is paid. Again, 
Bureau policy will state that examples of health care services based on 
staff referrals, follow-up treatment for chronic conditions, and 
preventive health care include: Blood pressure checks, glucose 
monitoring, insulin injections, TB testing, vaccinations, and patient 
education, etc. We do not place this definition in the rule text 
because any illness defined as ``chronic infectious disease'' may at 
any time be no longer considered chronic or infectious, due to frequent 
breakthroughs in medical research.
    For the aforementioned reasons, we adopt the proposed rule, 
published on October 10, 2002, at 67 FR 63059, as final without change. 
Please note that this rule is effective and we will begin to implement 
it on October 3, 2005. We will not implement the provisions of this 
rule until 30 days after we have given notice of these rules to inmates 
in our custody, as required by 18 U.S.C. 4048(i)

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'', section 
1(b), Principles of Regulation. The Director, Bureau of

[[Page 43050]]

Prisons has determined that this rule is not a ``significant regulatory 
action'' under Executive Order 12866, section 3(f), and accordingly 
this rule has not been reviewed by the Office of Management and Budget.
    BOP has assessed the costs and benefits of this rule as required by 
Executive Order 12866 Section 1(b)(6) and has made a reasoned 
determination that the benefits of this rule justify its costs. The 
benefits of encouraging inmates to be more responsible for their own 
health care and reducing inmate abuse of the Bureau's health care 
system outweigh any perceived costs of imposing the health service 
fees.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Under Executive Order 13132, this rule 
does not have sufficient federalism implications for which we would 
prepare a Federalism Assessment.

Regulatory Flexibility Act

    The Director of the Bureau of Prisons, under the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation. By 
approving it, the Director certifies that it will not have a 
significant economic impact upon a substantial number of small entities 
because: This rule is about the correctional management of offenders 
committed to the custody of the Attorney General or the Director of the 
Bureau of Prisons, and its economic impact is limited to the Bureau's 
appropriated funds.

Unfunded Mandates Reform Act of 1995

    This rule will not cause State, local and tribal governments, or 
the private sector, to spend $100,000,000 or more in any one year, and 
it will not significantly or uniquely affect small governments. We do 
not need to take action under the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

List of Subjects in 28 CFR Part 549

    Prisoners.

Harley G. Lappin,
Director, Bureau of Prisons.


0
Under rulemaking authority vested in the Attorney General in 5 U.S.C. 
552(a) and delegated to the Director, Bureau of Prisons, we amend 28 
CFR part 549 as follows.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 549--MEDICAL SERVICES

0
1. Revise the authority citation for 28 CFR 549 to read as follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4005, 
4014, 4042, 4045, 4081, 4082, (Repealed in part as to offenses 
committed on or after November 1, 1987), 4241-4247, 5006-5024 
(Repealed October 12, 1984, as to offenses committed after that 
date), 5039; 28 U.S.C. 509, 510.

0
2. Add a new Subpart F to read as follows:

Subpart F--Fees for Health Care Services

Sec.
549.70 Purpose and scope.
549.71 Inmates affected.
549.72 Services provided without fees.
549.73 Appealing the fee.
549.74 Inmates without funds.


Sec.  549.70  Purpose and scope.

    (a) The Bureau of Prisons (Bureau) may, under certain 
circumstances, charge you, an inmate under our care and custody, a fee 
for providing you with health care services.
    (b) Generally, if you are an inmate as described in Sec.  549.71, 
you must pay a fee for health care services of $2.00 per health care 
visit if you:
    (1) Receive health care services in connection with a health care 
visit that you requested, (except for services described in Sec.  
549.72); or
    (2) Are found responsible through the Disciplinary Hearing Process 
to have injured an inmate who, as a result of the injury, requires a 
health care visit.


Sec.  549.71  Inmates affected.

    This subpart applies to:
    (a) Any individual incarcerated in an institution under the 
Bureau's jurisdiction; or
    (b) Any other individual, as designated by the Director, who has 
been charged with or convicted of an offense against the United States.


Sec.  549.72  Services provided without fees.

    We will not charge a fee for:
    (a) Health care services based on staff referrals;
    (b) Staff-approved follow-up treatment for a chronic condition;
    (c) Preventive health care services;
    (d) Emergency services;
    (e) Prenatal care;
    (f) Diagnosis or treatment of chronic infectious diseases;
    (g) Mental health care; or
    (h) Substance abuse treatment.


Sec.  549.73  Appealing the fee.

    You may seek review of issues related to health service fees 
through the Bureau's Administrative Remedy Program (see 28 CFR part 
542).


Sec.  549.74  Inmates without funds.

    You will not be charged a health care service fee if you are 
considered indigent and unable to pay the health care service fee. The 
Warden may establish procedures to prevent abuse of this provision.

[FR Doc. 05-14636 Filed 7-25-05; 8:45 am]
BILLING CODE 4410-05-P