Such co-pay policies are becoming increasingly common and, because they seek to charge inmates for a service that was previously provided for free, are predictably becoming the focus of inmate court challenges. Inmates raise a number of arguments as to why such co-pay programs are unconstitutional. To date, however, inmates' efforts to convince the judiciary that they are entitled to unrestricted free medical care have not met with much success.

Striking a Balance

The general rule appears to be that it is not unconstitutional to charge inmates a co-pay fee for the provision of medical services provided that needed medical services are not denied simply because the inmate cannot pay. This general rule represents an attempt to strike a balance between correctional facility obligations and inmate responsibilities.

It has long been recognized that correctional health care officials are constitutionally obligated to ensure that inmates are not subjected to 'cruel and unusual punishment.' In health care, cruel and unusual punishment is defined as treating inmates' serious medical needs with deliberate indifference. Refusing to provide medical services solely because the inmate cannot afford to pay (and where the inmate is a ward of the state) would certainly constitute deliberate indifference to an inmate's serious medical needs.

For this reason, health care officials must treat an inmate's serious medical needs regardless of whether the inmate can afford to pay. As one court held, 'Prison officials may not condition the provision of needed medical services on an inmate's ability or willingness to pay.'

However, a correctional facility's obligation to provide medical services does not prohibit it from charging a fee to those who can afford to pay. Courts have recognized that the constitution 'guarantees only that inmates receive necessary medical care; it does not guarantee free medical care.'

While inmates may assert that this effectively results in a penalty on the financially able, no unconstitutional discrimination is triggered by a system that provides medical services to all but charges those who can afford to pay. In other words, having money in a trust fund or commissary account does not elevate an inmate into a protected class. In addition, as long as needed medical services are provided regardless of ability to pay, courts generally hold that 'Forcing inmates to pay for part of their medical care does not run afoul of the deliberate indifference standard.'

The judiciary also has discussed the amount of the inmate's co-pay. In each case, the fee involved has been relatively small (less than $10 per visit), with such an amount being seen as nothing more than 'a personal expense that [the inmate] can meet and would be required to meet in the outside world.' It is generally recognized that the value of the medical service far exceeds the amount of the co-pay fee.

In addition, medications, especially for chronic conditions, are generally exempt since inmate responsibility and abuse of the sick-call system are typically not an issue. Finally, a graduated system (e.g., $5 to see the nurse and $8 to see the physician) also has been upheld.
The fee charged can be removed from the inmate's account without the inmate's consent. Courts have noted that if inmates are required to give their express consent before the fee is removed from their accounts, they might refuse to consent while they 'haggle' with prison officials. Not only would this result in bureaucratic nightmares for the institution, but it also could interfere with the provision of medical services.

The Bottom Line

While many of the details regarding inmate co-pay or fee-for-service plans are still being worked out, such programs have resulted in a reduction of sick call use and are beneficial in teaching inmates financial responsibility. One Texas court went so far as to equate the right to medical care with an inmate's right to court access:

If an inmate can pay for his medical care, then the State may require reimbursement.... If the prisoner cannot pay, he must be maintained at state expense; it cannot deny minimal medical care to poor inmates.... As he was obligated to pay court costs, he may be obliged to pay his medical costs. Texas imprisoned him, it did not adopt him.

The bottom line is that medical resources are scarce in correctional facilities and should be efficiently utilized. Requiring an inmate to pay a small amount for access to those resources will, in the long run, result in more effective provision of medical services to those inmates truly in need and will lead to inmates having a greater appreciation of the cost of medical services.

About the Author

Robert P. Vogt, JD, is an attorney with Weldon-Linne & Vogt in Chicago. He also serves on the board of directors of the Academy of Correctional Health Professionals. E-mail him at bvogt@wlv-online.com.

Note: The information above is not intended as legal or any other kind of advice. Specific legal or other questions should be addressed to an attorney or other appropriate professional.