Request By:
Mr. Robert M. Kirtley
Daviess County Attorney
Courthouse
Owensboro, Kentucky 42301
Opinion
Opinion By: David L. Armstrong, Attorney General
You have asked the Office of the Attorney General to consider a question concerning the responsibilities of jailers and county governments with respect to emergency medical attention needed by one arrested but not yet incarcerated in a county jail. We have written on this subject before but due to changes made in the applicable law by the 1984 General Assembly, we will set out below our interpretation of the present law.
Two bills enacted during the 1984 Session now codified into law must be considered to respond to your question. 1984 Kentucky Acts, Chapter 415, Senate Bill 361, Section 2 served to amend KRS 441.010. Subsection (3) of this statutory provision was changed as follows, with that portion of the law removed being stricken through and bracketed:
"(3) Except as provided in subsection (4) and (5) of this section, the cost of providing necessary medical, dental and psychological care for prisoners in the county jail shall be paid from the county jail budget.
"(4) The cost of providing necessary medical, dental or psychological care for prisoners of the United States government shall be paid as provided by contract between the United States government and the county or as may otherwise be provided by federal law.
"(5) The cost of providing necessary medical, dental or psychological care, beyond routine care and diagnostic services, for prisoners held pursuant to a contractual agreement with the state shall be paid as provided by contract between the state and county. The costs of necessary medical, dental or psychological care, beyond routine care and diagnostic services, of prisoners held in the county jail for which the county receives a per diem payment shall be paid by the state.
"(6) When the cost of necessary medical, dental or psychological care for a prisoner exceeds twenty-five hundred dollars ($2500), as calculated by using the maximum allowable costs to similar persons or facilities for the same or similar services under the Kentucky medical assistance program, the state shall reimburse the county for that portion of the costs that exceed twenty-five hundred dollars ($2500). The reimbursement shall be subject to the following terms and conditions:
"(a) The care is necessary as defined in subsection (9) of this section;
"(b) The prisoner is indigent as defined in subsection (7) of this section, or is uninsured; and
"(c) No state reimbursement to the county for care provided by physicians, hospitals, laboratories, or other health care providers shall exceed the maximum payments allowed to similar persons or facilities for the same or similar services under the Kentucky medical assistance program.
"(7) The determination of whether a prisoner is indigent shall be made pursuant to KRS 31.120. Prisoners who are later determined not to have been indigent, or who at a time following treatment are no longer indigent, shall be required to repay the costs of payments made pursuant to this section to the unit of government which made the payment.
"(8) The terms and conditions relating to any determination of nonindigency and demands for repayment shall be under the same terms and conditions as are provided under KRS Chapters 31 and 431 relating to similar circumstances in the program for defense of indigents by the public advocate.
"(9) For the purposes of this section, 'necessary care' means care of a nonelective nature that can not be postponed until after the period of confinement without hazard to the life or health of the prisoner. The physician attending the prisoner shall certify, under oath, that the care was necessary."
The Reviser of Statutes, pursuant to KRS 7.136, has renumbered KRS 441.010 as KRS 441.045.
Section 12 of Senate Bill 361, also believed to be germane to our consideration of your question, added certain definitions to KRS 441.005, not pertinent hereto, but left alone the definition of "prisoner" as used in Chapter 441. KRS 441.005(3) defines the term "prisoner" in this way:
"(3) 'Prisoner' means any person confined in jail pursuant to any code, ordinance, law, or statute of any unit of government and who is:
(a) Charged with or convicted of an offense; or
(b) Held for extradition or as a material witness; or
(c) Confined for any other reason."
The other legislative changes came about through 1984 Kentucky Acts, Chapter 141, House Bill 310, also an act relating to jails, which amended KRS 71.040 to read as follows:
"At the time of booking, the jailer shall receive and keep in the jail all persons who are lawfully committed thereto, until they are lawfully discharged, unless the person is in need of emergency medical attention, in which case the arresting officer shall obtain medical attention for the person prior to delivery to the jail. The jailer shall treat them humanely and furnish them with proper food and lodging during their confinement. He shall deliver those who die in jail to their friends, if requested, or have them decently buried at the expense of the county."
It is believed important to recognize that the 1984 General Assembly fully understood the relationship and identical subject addressed in both House Bill 310 and Senate
Bill 361. This conclusion is warranted from the fact that House Bill 310 was approved March 28, 1984, with Senate Bill 361 having been approved April 11, 1984, and significantly that sections 18 and 19 of Senate Bill 361 amended or repealed sections of House Bill 310. Thus, the provisions of House Bill 310 and Senate Bill 361, as parts of bills relating to jails, must be read as being consistent with each other and at the least as being in para materia. See Economy Optical Co. v. Kentucky Bd. of Optometric Examiners, Ky., 310 S.W.2d 783 (1958).
Keeping the above in mind, it appears that the General Assembly has quite intentionally created a statutory demarcation between individuals under arrest for a public offense who may need medical attention but who have not been presented for incarceration in a county jail with the prisoner, as that term is defined for KRS Chapter 441 purposes, meaning one already in jail, who needs medical attention. KRS 71.040 instructs that if an arresting officer determines the person arrested is in need of emergency medical attention, the arresting officer is to "obtain medical attention for the prisoner prior to delivery to the jail. " (Emphasis supplied). On the other hand, if an individual needs medical attention at any time after he is placed in the custody of the jailer, the jailer is required to seek the proper medical attention. Only in this latter situation do the provisions of KRS 441.045(3) - (9) apply. Therefore, only after a prisoner becomes lodged in a county jail does the county potentially become liable for the costs of emergency medical treatment for the prisoner.
In light of the amendments to the statutory law discussed herein, the conclusion reached in OAG 81-122 is no longer valid and that opinion is withdrawn. OAG 84-256 is to be considered extended by the position expressed herein. Any other prior opinions of this office inconsistent with the position herein expressed are hereby accordingly modified.