MEDICINE BEHIND BARS: REGULATING AND LITIGATING PRISON HEALTHCARE UNDER STATE LAW FORTY YEARS AFTER ESTELLE V. GAMBLE.

• Author: Sonntag, Holger
• Position: Comment

CONTENTS INTRODUCTION I. REGULATING PRISON HEALTHCARE A. The General Context: State Constitutions, Laws, Regulations B. The Managed-Care Approach to Providing Healthcare in Prisons 1. States Address the Rising Cost of Providing Medical Care to Prisoners 2. The Rise of Managed Healthcare in the U.S.: A Brief History 3. Managed Care in Prisons: The Example of Connecticut a. Background and Policy b. Practice 4. Legal Responses to Managed Care in the Prison Context a. The Constitutional Route b. State-Law Responses II. LITIGATING PRISON HEALTHCARE AS STATE MEDICAL MALPRACTICE AND TORT CLAIMS A. The Background: Common-Law Duty of Care for Prisoners and Obstacles to Inmate Suits B. Distinguishing Tort and Medical Malpractice Claims and Establishing the Standard of Care C. Sovereign Immunity D. Meeting Administrative Requirements E. Direct and Vicarious Liability of State Agencies for Medical Malpractice F. Remedies CONCLUSION A. Summary of Findings B. Proposals for Reform INTRODUCTION

As of 2017, about 1,330,000 inmates are housed in state prisons in the U.S. (1) These inmates represent approximately 60 percent of the almost 2.3 million persons confined by various jurisdictions in the United States. (2)

California, Florida, and Texas are the three states with the highest prison population in absolute numbers, accounting for more than one-third of all state prisoners as of 2017. (3) As of 2016, the District of Columbia had the highest per-capita incarceration rate in the U.S.--with 1,196 inmates per 100,000 residents--followed closely by Louisiana. (4)

The U.S. as a whole is struggling to provide reliable access to effective and affordable healthcare. (5) Moreover, inmates are sicker on average than the general population. (6)

A little over forty years ago, the Supreme Court decided Estelle v. Gamble, (7) a landmark decision concerning the constitutional standard for medical care behind bars. Since Estelle, most litigation (8) and much academic commentary (9) on prison healthcare has focused on the Eighth Amendment.

This Comment sets out to update older studies from around 1970 that devoted a fair deal of attention to prison healthcare under then-existing state law (10) by exploring some aspects of how the provision of healthcare in state prisons is regulated and litigated at the state level today. (11) To achieve this goal, this Comment proceeds in two parts. Part I discusses various models for state regulation of healthcare in prisons. Part I places special emphasis on the managed-care model. The implementation of this model is discussed based on the example of Connecticut. Managed care has held out the promise of quality affordable care, but has also generated some controversy over the past decades as inimical to quality healthcare. Part II highlights a number of aspects of litigating healthcare claims by prisoners by discussing the torts and medical malpractice approach to healthcare litigation under state law. The Conclusion will summarize the findings of Parts I and II and offer some proposals for reform.

1. REGULATING PRISON HEALTHCARE

   1. The General Context: State Constitutions, Laws, and Regulations

      States have regulated the provision of healthcare to their prisoners beginning in the eighteenth century. For instance, Delaware's 1792 Constitution appears to be the first state constitution to do so by requiring that "in the construction of [jails] a proper regard shall be had to the health of prisoners." (12) In the years following the Civil War, other states--North Carolina, (13) Tennessee, (14) Wyoming, (15) and Georgia (16)-turned the condition of their prisons, including the health and general treatment of their prisoners, into concerns of constitutional magnitude.

      Since the middle of the nineteenth century, even states that did not constitutionalize the conditions of imprisonment imposed a duty on state agencies to ensure that inmates were clothed, fed, and provided medicine and medical care. (17) These statutory provisions vary in form and detail. (18) Some statutes formulate basic requirements for prison healthcare--such as an initial physical and mental examination for all new inmates, (19) or that inmates are required to contribute to healthcare expenditures through co-payments (20)--but then delegate the authority to prescribe more detailed standards for healthcare to the state's department of corrections. (21) Other statutes simply delegate all such decisions to the state agency responsible for running state prisons while setting very general (22) or no parameters. (23)

      In formulating their healthcare policies, states--acting through their legislatures or competent agencies--have addressed a number of aspects of inmate healthcare, (24) such as setting the community standard of care as the appropriate standard for healthcare provided to inmates. (25) They have also adopted and adapted elements of healthcare provision models employed in the general population, such as the continuous care model (26) and the managed-care model. (27)

   2. The Managed-Care Approach to Providing Healthcare in Prisons

      1. States Address the Rising Cost of Providing Medical Care to Prisoners

         States have seen their expenditures for prison healthcare rise rapidly. (28) For example, annual healthcare expenditures per inmate ranged from $11,793 in California to $2,181 in Illinois in 2008. (29) The median growth of per-inmate healthcare expenditures was 28 percent between 2001 and 2008. (30) While ten states saw their overall healthcare spending mushroom by 90 percent or more, only two states saw decreased spending during this time. (31) The median growth in this category was 49 percent. (32) Healthcare expenditures in the forty-four states subject to a recent study totaled $6.5 billion in 2008, about one-sixth of the total correctional budgets in those states. (33)

         There are several reasons for increased cost of providing healthcare to inmates. An aging inmate population--in part due to extended sentences--is one of the main drivers of increased cost of medical care in state prison systems. (34) Other factors that make the provision of healthcare in a prison setting more costly than for the general population are the "[prevalence of infectious and chronic diseases, mental illness, and substance abuse among inmates, many of whom enter prisons with these problems," as well as challenges that come with the distance of prisons from hospitals and other providers, and the need to guard inmates requiring off-site treatment. (35)

         States have developed a number of strategies to deal with the rising cost of providing health care to their prison populations. Establishing compassionate release programs for certain elderly inmates is one approach to cost containment employed by the states that is often controversial and infrequently used. (36) Telemedicine is used to get inmates in, at times, remote prisons in contact with providers, obviating the need for some expensive off-site appointments and for bringing some providers to prisons. (37)

         While these two strategies are simply aimed at saving costs, the expansion of Medicaid access under the Affordable Care Act ("ACA") functions as both a savings device and a cost-shifting mechanism. Savings are likely to be realized because studies suggest that access to healthcare after prison is a factor when it comes to recidivism. (38) "[A]t least 70% of the ... 10 million people released from prison [and] jail each year are uninsured." (39) Under the ACA's Medicaid expansion, states are able to enroll a greater percentage of their low-income adult ex-inmate populations in Medicaid. (40) Thus, savings may be realized by expansion states that provide for a seamless transition of released inmates to outside services by enrolling the inmates while still in prison. (41) Access to Medicaid after prison obviates the need to commit crime to have access to care and prevents recidivism due to uncontrolled health issues, such as substance abuse and mental illness. (42) This is why it is important that, following passage of the ACA, Medicaid's "essential health benefits" available also to ex-inmates now include mental health and substance-use-disorder services. (43)

         Yet the Medicaid expansion also functions as a cost-shifting device. This is because the Social Security Act--since its 1965 amendments-allows states to shift to the federal budget between fifty percent and eighty-three percent of treatment costs incurred while an inmate enrolled in Medicaid receives inpatient services for twenty-four hours or more in a medical facility outside the prison walls. (44) Prior to the Medicaid expansion, this provision applied only to a small percentage of inmates and largely escaped the states' notice. (45) But the shift from only covering "low-income juveniles, pregnant women, adults with disabilities and frail elders" to covering also able-bodied adults with income below 138 percent of the federal poverty guideline in expansion states makes virtually all of their inmate populations eligible. (46) Yet while the ACA increased the number of eligible inmates, it did not enhance the services covered, as Medicaid for inmates still only covers "inpatient health services delivered beyond prison walls." (47)

         Finally, another cost-saving strategy employed by states is outsourcing prison healthcare to contractors. (48) Some of these contractors--such as the contractor employed by the State of Connecticut discussed below (49)--apply the kind of managed-care strategies discussed in the following Section.

      2. The Rise of Managed Healthcare in the U.S.: A Brief History

         State prison authorities did not invent the concept of managed care, but a number of them employ elements of the model authorized by Congress and state legislatures for the general population across the U.S. to curb healthcare expenditures. (50) Managed healthcare goes back to the early twentieth century where local organizations sought to provide healthcare to...