Request By:
Mr. David H. Bland
Kentucky Jailers Association
Route #2, McCowans Ferry Rd.
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your inquiry concerns the providing of medical care for indigent county jail prisoners. See KRS 441.010. You request clarification of certain opinions of this office.
As concerns OAG 69-464, you write that the county holding the prisoner was liable for the medical payment; residency was not questioned. As relates to OAG 77-690, you cite this expression: "It is our opinion that the fiscal court, of the county of the prisoner's residence . . . . is responsible." Finally, you say, concerning OAG 78-7, we use the terms "county in which the prisoner resides. "
Question No. 1:
"Does prisoner residency refer to the jail and county in which he happens to be held with that county bearing the financial obligation? If you determine that the definition of residency actually means "Where the prisoner has an established legal residence", who is responsible for the billing of other counties and/or states?"
Prior to the amendment of KRS 441.010 in 1979, to which we shall refer hereinafter, the county in which the sick indigent actually resided was primarily responsible for funding the extending of medical care to such a sick indigent. See City of Richmond v. Madison County Fiscal Court, 290 Ky. 293, 161 S.W.2d 58 (1942); and City of Paducah v. McCracken County, 305 Ky. 539, 204 S.W.2d 942 (1947) (those cases did not involve indigent prisoners as such). However, the Court of Appeals in those cases held that the city, in which such indigents reside, has a duty to provide medical care for them, except that the court did not point out the precise contribution to be made by the city. The county's responsibility for providing for the poor and sick was primarily based upon KRS 204.010 (repealed) and § 1840 of the Kentucky statutes, later, KRS 67.080. Even though the statutory law has undergone change, it is our view that the county still has an overall responsibility for caring for the sick and the poor in general, but subject to its ability to pay, and as a properly budgeted item pursuant to KRS Chapter 68. In addition, the jailer cannot legally bind the fiscal court for costs of medical care of an indigent jail prisoner without the prior permission or later ratification of the fiscal court. Fulton County v. Spartan Chemicals, Inc., 343 S.W.2d 125 (1961); and Nolan v. White, Ky., 411 S.W.2d 457 (1967). City of Paducah v. McCracken County, above, p. 944. See OAG 69-464, 77-690, and 78-7. See also KRS 67.080(1(c) (fiscal court controls county fiscal affairs) and KRS 67.083(3)(d) (providing for the health of citizens).
Thus as to the general responsibility of the county for the medical care of indigents, the county is responsible for only such indigents who actually reside in that county. It is equivalent to legal residence under the two cases cited above (City of Paducah and City of Richmond). In the specific situation of indigent jail prisoners, the general county responsibility would obtain for county residents. In addition, as the county of incarceration, it must pay for such medical care as a part of the jail's operating cost. See KRS 71.020, 71.040 (custodial responsibility of jailer) , 67.080(2)(b), 67.083(3)(p), and 67.130 (county's responsibility for jail as a necessary county building). See also Funk v. Milliken, Ky., 317 S.W.2d 499 (1958); Barkley v. Gatewood, 285 Ky. 179, 147 S.W.2d 373 (1941) (relating to necessary official expenses of a constitutional office); and Blanks v. Cunningham (U.S.C.A. -4, 1969) 409 F.2d 220 (responsible medical care must be furnished prisoners) . If such prisoners are residents of some other county or state, the medical care cost would again have to be borne by the county of incarceration as a necessary cost in the operation of the jail. See KRS 67.080(2)(b); 67.130; 67.080(3)(p); and 67.160. See also Fiscal Court of Jefferson County v. Pflanz, 127 Ky. 8, 104 S.W. 1002 (1907); and Tate v. Kendrick, 10 Ky. Opin. 93 (1878). The county jail is a county institution; and the fiscal court is responsible for maintaining the jail as a functional institution. Holland v. Fayette County, 240 Ky. 37, 41 S.W.2d 651 (1931); and Henry v. Wilson, 249 Ky. 589, 61 S.W.2d 305 (1933) 307.
The current law, KRS 441.010, governs within its lines of limitation. It provides that the payment for medical care given an indigent prisoner is determined by the unit of government whose law the prisoner is charged with violating. If the indigent prisoner is charged with violating or is convicted of violating a state statute, the state must pay the medical care cost. The payment for medical care for indigent prisoners of the United States government would be governed by federal law. In the event of a person imprisoned for contempt of court, the state shall be deemed the responsible unit of government in the payment of the medical care. KRS 441.010(3). The county would pay if the indigent prisoner is charged with violating the particular county's ordinance. This particular law came into existence upon the enactment of the amendment to KRS 441.010 of 1979 [1979 Ex. Sess.] Ch. 21, § 1, effective May 12, 1979.
The amendment to KRS 441.010 in 1979 places financial responsibility for non-postponable, life or health threatening medical care costs involving jail prisoners, declared indigent under KRS 31.120, on the unit of government whose law the prisoner has violated. It specifies that only a licensed physician can determine whether medical care is postponable without hazard until after the period of confinement. Thus the unit of government whose law has been violated shall not pay for the medical care which could be postponed until after the period of confinement without hazard to the prisoner, except for the initial examination by the physician to determine whether medical care is needed.
Thus under the above limitations of KRS 441.010, the state removes at least a part of the county's burden of paying such medical care for indigent prisoners to that extent.
Question No. 2:
"Assuming the subject medical payment is not covered by the State's medical reimbursement program and that the prisoner is indigent:
"1. Who is responsible for obtaining payment if the fiscal court states that it is not able to pay?
"2. Who is responsible for the prisoner's health if the jailer can obtain neither prior permission or later ratification for the cost of a prisoner's medical treatment."
Where the state or a city is not responsible for the medical care cost under the limited terms of KRS 441.010, as above described, the incarcerating county must pay the cost, subject to the conditions outlined earlier herein. If for some valid reason, suggested above, the county is unable to pay the medical care cost for the indigent prisoner, the cost may be paid out of the fees of the jailer's office, as a necessary official expense, if such fees are available. Thus, as a residual matter, the county treasury, or the fees of the jailer's office, must be resorted to in the payment of routine medical care which is postponable under KRS 441.010.
Question No. 3:
"Must the jailer make all arrangements for transportation and guarding and simply bill the fiscal court (ref. OAG 80-607) or is the sheriff the responsible transportation officer?"
This question is first aimed at who pays the transportation and security costs involved in providing medical care for an indigent county jail prisoner?
Since the items of transportation and security costs are not covered in KRS 441.010 (medical care, or medical expenses, is the narrow area intended in that statute), the incarcerating county must pay such expenses, subject to the basic "county conditions" outlined above. Where the county is unable to pay such expenses, they may be paid out of the jailer's fees, if available. See Neagle v. State Highway Department, Ky., 371 S.W.2d 630 (1963) 632, wherein the court equates the term "medical" with the practice of medicine, as defined in KRS 311.550.
OAG 80-607 represents the position of the Attorney General as to the officer immediately responsible for providing transportation and security for indigent county jail prisoners requiring medical care. We concluded in that opinion that the county jailer, not the sheriff, is the officer immediately responsible for such transportation and security costs. Such costs may ultimately be funded out of the fees of the jailer's office or, if necessary, out of the county treasury. See OAG 80-607 for the detailed rationale.
The change of view took place after a restudy of KRS 441.500 and the statutes relating to the custodial duties of the county jailer. KRS 441.500, requiring the sheriff to transport county jail prisoners, is geared to the concept of transporting such prisoners between jails and transporting them to the courts for hearings and trials. The terms "trial" and "sentenced to confinement" are significantly placed in the context of the statute. On the other hand, the medical trip arises out of the administrative and custodial responsibilities of the county jailer. This view is consonant with the ancient history of this subject.
Finally, the county treasury, or the fees of the jailer's office, will have to fund the minimum constitutionally guaranteed medical care for indigent prisoners, as interpreted by the federal courts, and which care may be outside the pale of KRS 441.010. The latter statute really addresses the right of jail prisoners in regard to the providing for and payment of emergency medical care expenses (not postponable) . In its present form KRS 441.010 simply does not address the broad range of ordinary or routine medical care guaranteed under the Federal Constitution, as interpreted by the courts in various civil rights actions (see 42 U.S.C. § 1983).
The court, in Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), ruled that deliberate indifference to serious medical needs of prisoners constitutes unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. This is true, the court said, whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. The court wrote that regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under § 1983 (civil action for deprivation of rights).
The case of Newman v. State of Alabama, (U.S.C.A. -5, 1975) 503 F.2d 1320, involved a challenge to the quality of medical care dispensed to inmates of the Alabama penal system. The court, in a footnote, pointed out that under the cruel and unusual punishment clause of the Eighth Amendment, courts confine their inquiry, inter alia, to whether conditions of confinement shock the conscience, are greatly disproportionate to the offense, or offend evolving notions of decency. The court also pointed out that the courts will not tolerate serious shortages in medication.
A pretrial detainee was held entitled to protection from cruel and unusual punishment as a matter of due process, and, where relevant, equal protection. Rhem v. Malcolm, (U.S.C.A. -2, 1974), 507 F.2d 333. The court, In Rhem, observed that inadequate resources can never be an adequate justification for the state's depriving any person of his constitutional rights.
The case of Church v. Hegstrom, (U.S.C.A. -2, 1969), 416 F.2d 449, held that § 1983 does not authorize federal courts to interfere in the ordinary medical practices or other matters of internal discipline of state prisons.
Ramsey v. Ciccone, (U.S.D.C., W.D. Missouri, 1970) 310 F.Supp. 600, observed that prison authorities have a duty to provide "needed medical attention" to prisoners; and intentional denial to a prisoner of needed medical treatment is cruel and unusual punishment, and violates the 8th Amendment to the Constitution of the United States.
It can be seen that KRS 441.010 does not fully address the quality and quantity of medical services to be extended to county jail prisoners. It is framed around the narrow concept of whether the medical care is postponable or not. Further, the statute does not address the overall medical care of prisoners in terms of medical rights under the federal constitution.
It is inevitable, therefore, that in order to protect himself and fiscal court, the jailer and the fiscal court must realistically consider the standards enunciated in the federal cases and be prepared to procure and pay for the medical care required by those federal standards, but which care is outside of the operative conditions of KRS 441.010. We are referring to the jailer's fees or the county treasury.