79–006

106TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 106–851

FEDERAL PRISONER HEALTH CARE COPAYMENT

ACT OF 2000

SEPTEMBER 14, 2000.—Committed to the Committee of the Whole House on the

State of the Union and ordered to be printed

Mr. MCCOLLUM, from the Committee on the Judiciary,

submitted the following

R E P O R T

together with

DISSENTING VIEWS

[To accompany H.R. 1349]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill

(H.R. 1349) to amend title 18, United States Code, to combat the

overutilization of prison health care services and control rising

prisoner health care costs, having considered the same, reports favorably thereon with an amendment and recommends that the bill

as amended do pass.

TABLE OF CONTENTS

Page

The Amendment ......................................................................................... 2

Purpose and Summary .............................................................................. 4

Background and Need for the Legislation ................................................ 5

Hearings ...................................................................................................... 6

Committee Consideration .......................................................................... 6

Vote of the Committee ............................................................................... 6

Committee Oversight Findings ................................................................. 8

Committee on Government Reform Findings .......................................... 8

New Budget Authority and Tax Expenditures ........................................ 9

Congressional Budget Office Cost Estimate ............................................ 9

Constitutional Authority Statement ......................................................... 12

Section-by-Section Analysis and Discussion ............................................ 12

Agency Views .............................................................................................. 15

Changes in Existing Law Made by the Bill, as Reported ....................... 15
2

Page

Dissenting Views ........................................................................................ 21

Additional Dissenting Views ..................................................................... 23

The amendment is as follows:

Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Federal Prisoner Health Care Copayment Act of

2000’’.

SEC. 2. HEALTH CARE FEES FOR PRISONERS IN FEDERAL INSTITUTIONS.

(a) IN GENERAL.—Chapter 303 of title 18, United States Code, is amended by

adding at the end the following:

‘‘§ 4048. Fees for health care services for prisoners

‘‘(a) DEFINITIONS.—In this section—

‘‘(1) the term ‘account’ means the trust fund account (or institutional equivalent) of a prisoner;

‘‘(2) the term ‘Director’ means the Director of the Bureau of Prisons;

‘‘(3) the term ‘health care provider’ means any person who is—

‘‘(A) authorized by the Director to provide health care services; and

‘‘(B) operating within the scope of such authorization;

‘‘(4) the term ‘health care visit’—

‘‘(A) means a visit, as determined by the Director, by a prisoner to an

institutional or noninstitutional health care provider; and

‘‘(B) does not include a visit initiated by a prisoner—

‘‘(i) pursuant to a staff referral; or

‘‘(ii) to obtain staff-approved follow-up treatment for a chronic condition; and

‘‘(5) the term ‘prisoner’ means—

‘‘(A) any individual who is incarcerated in an institution under the jurisdiction of the Bureau of Prisons; or

‘‘(B) any other individual, as designated by the Director, who has been

charged with or convicted of an offense against the United States.

‘‘(b) FEES FOR HEALTH CARE SERVICES.—

‘‘(1) IN GENERAL.—The Director, in accordance with this section and with

such regulations as the Director shall promulgate to carry out this section, may

assess and collect a fee for health care services provided in connection with each

health care visit requested by a prisoner.

‘‘(2) EXCLUSION.—The Director may not assess or collect a fee under this

section for preventative health care services, emergency services, prenatal care,

diagnosis or treatment of chronic infectious diseases, mental health care, or substance abuse treatment, as determined by the Director.

‘‘(c) PERSONS SUBJECT TO FEE.—Each fee assessed under this section shall be

collected by the Director from the account of—

‘‘(1) the prisoner receiving health care services in connection with a health

care visit described in subsection (b)(1); or

‘‘(2) in the case of health care services provided in connection with a health

care visit described in subsection (b)(1) that results from an injury inflicted on

a prisoner by another prisoner, the prisoner who inflicted the injury, as determined by the Director.

‘‘(d) AMOUNT OF FEE.—Any fee assessed and collected under this section shall

be in an amount of not less than $1.

‘‘(e) NO CONSENT REQUIRED.—Notwithstanding any other provision of law, the

consent of a prisoner shall not be required for the collection of a fee from the account of the prisoner under this section. However, each such prisoner shall be given

a reasonable opportunity to dispute the amount of the fee or whether the prisoner

qualifies under an exclusion under this section.

‘‘(f) NO REFUSAL OF TREATMENT FOR FINANCIAL REASONS.—Nothing in this section may be construed to permit any refusal of treatment to a prisoner on the basis

that—

‘‘(1) the account of the prisoner is insolvent; or

‘‘(2) the prisoner is otherwise unable to pay a fee assessed under this section.

‘‘(g) USE OF AMOUNTS.—

‘‘(1) RESTITUTION OF SPECIFIC VICTIMS.—Amounts collected by the Director

under this section from a prisoner subject to an order of restitution issued pur-
3

suant to section 3663 or 3663A shall be paid to victims in accordance with the

order of restitution.

‘‘(2) ALLOCATION OF OTHER AMOUNTS.—Of amounts collected by the Director

under this section from prisoners not subject to an order of restitution issued

pursuant to section 3663 or 3663A—

‘‘(A) 75 percent shall 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

‘‘(B) 25 percent shall be available to the Attorney General for administrative expenses incurred in carrying out this section.

‘‘(h) NOTICE TO PRISONERS OF LAW.—Each person who is or becomes a prisoner

shall be provided with written and oral notices of the provisions of this section and

the applicability of this section to the prisoner. Notwithstanding any other provision

of this section, a fee under this section may not be assessed against, or collected

from, such person—

‘‘(1) until the expiration of the 30-day period beginning on the date on

which each prisoner in the prison system is provided with such notices; and

‘‘(2) for services provided before the expiration of such period.

‘‘(i) NOTICE TO PRISONERS OF REGULATIONS.—The regulations promulgated by

the Director under subsection (b)(1), and any amendments to those regulations,

shall not take effect until the expiration of the 30-day period beginning on the date

on which each prisoner in the prison system is provided with written and oral notices of the provisions of those regulations (or amendments, as the case may be).

A fee under this section may not be assessed against, or collected from, a prisoner

pursuant to such regulations (or amendments, as the case may be) for services provided before the expiration of such period.

‘‘(j) NOTICE BEFORE PUBLIC COMMENT PERIOD.—Before the beginning of any period a proposed regulation under this section is open to public comment, the Director shall provide written and oral notice of the provisions of that proposed regulation to groups that advocate on behalf of Federal prisoners and to each prisoner subject to such proposed regulation.

‘‘(k) REPORTS TO CONGRESS.—Not later than 1 year after the date of the enactment of the Federal Prisoner Health Care Copayment Act of 2000, and annually

thereafter, the Director shall transmit to Congress a report, which shall include—

‘‘(1) a description of the amounts collected under this section during the

preceding 12-month period;

‘‘(2) an analysis of the effects of the implementation of this section, if any,

on the nature and extent of heath care visits by prisoners;

‘‘(3) an itemization of the cost of implementing and administering the program;

‘‘(4) a description of current inmate health status indicators as compared

to the year prior to enactment; and

‘‘(5) a description of the quality of health care services provided to inmates

during the preceding 12-month period, as compared with the quality of those

services provided during the 12-month period ending on the date of the enactment of such Act.’’.

(b) CLERICAL AMENDMENT.—The analysis for chapter 303 of title 18, United

States Code, is amended by adding at the end the following:

‘‘4048. Fees for health care services for prisoners.’’.

SEC. 3. HEALTH CARE FEES FOR FEDERAL PRISONERS IN NON-FEDERAL INSTITUTIONS.

Section 4013 of title 18, United States Code, is amended by adding at the end

the following:

‘‘(c) HEALTH CARE FEES FOR FEDERAL PRISONERS IN NON-FEDERAL INSTITUTIONS.—

‘‘(1) IN GENERAL.—Notwithstanding amounts paid under subsection (a)(3), a

State or local government may assess and collect a reasonable fee from the trust

fund account (or institutional equivalent) of a Federal prisoner for health care

services, if—

‘‘(A) the prisoner is confined in a non-Federal institution pursuant to

an agreement between the Federal Government and the State or local government;

‘‘(B) the fee—

‘‘(i) is authorized under State law; and

‘‘(ii) does not exceed the amount collected from State or local prisoners for the same services; and

‘‘(C) the services—
4

‘‘(i) are provided within or outside of the institution by a person

who is licensed or certified under State law to provide health care services and who is operating within the scope of such license;

‘‘(ii) constitute a health care visit within the meaning of section

4048(a)(4) of this title; and

‘‘(iii) are not preventative health care services, emergency services,

prenatal care, diagnosis or treatment of chronic infectious diseases,

mental health care, or substance abuse treatment.

‘‘(2) NO REFUSAL OF TREATMENT FOR FINANCIAL REASONS.—Nothing in this

subsection may be construed to permit any refusal of treatment to a prisoner

on the basis that—

‘‘(A) the account of the prisoner is insolvent; or

‘‘(B) the prisoner is otherwise unable to pay a fee assessed under this

subsection.

‘‘(3) NOTICE TO PRISONERS OF LAW.—Each person who is or becomes a prisoner shall be provided with written and oral notices of the provisions of this

subsection and the applicability of this subsection to the prisoner. Notwithstanding any other provision of this subsection, a fee under this section may not

be assessed against, or collected from, such person—

‘‘(A) until the expiration of the 30-day period beginning on the date on

which each prisoner in the prison system is provided with such notices; and

‘‘(B) for services provided before the expiration of such period.

‘‘(4) NOTICE TO PRISONERS OF STATE OR LOCAL IMPLEMENTATION.—The implementation of this subsection by the State or local government, and any

amendment to that implementation, shall not take effect until the expiration of

the 30-day period beginning on the date on which each prisoner in the prison

system is provided with written and oral notices of the provisions of that implementation (or amendment, as the case may be). A fee under this subsection may

not be assessed against, or collected from, a prisoner pursuant to such implementation (or amendments, as the case may be) for services provided before the

expiration of such period.

‘‘(5) NOTICE BEFORE PUBLIC COMMENT PERIOD.—Before the beginning of any

period a proposed implementation under this subsection is open to public comment, written and oral notice of the provisions of that proposed implementation

shall be provided to groups that advocate on behalf of Federal prisoners and to

each prisoner subject to such proposed implementation.’’.

SEC. 4. COMPREHENSIVE HIV/AIDS SERVICES REQUIRED TO BE INCLUDED IN HEALTH CARE

SERVICES FOR WHICH HEALTH CARE FEES MAY BE ASSESSED.

Any health care services for which a person may be assessed a fee under section

4048 of title 18, United States Code (as added by section 2) or section 4013(c) of

such title (as added by section 3) shall include comprehensive coverage for services

relating to human immunodeficiency virus (HIV) and acquired immune deficiency

syndrome (AIDS).

PURPOSE AND SUMMARY

H.R. 1349, the ‘‘Federal Prisoner Health Care Copayment Act of

2000,’’ authorizes the Federal Bureau of Prisons to collect a fee

from any person who has been charged with or convicted of a Federal crime each time that person visits a health care professional

at his or her request and receives health care services. The amount

of the fee is to be determined by the Director of the Bureau of Prisons through regulation, but would be at least $1 per visit. The fee

would be assessed and deducted from any account maintained on

behalf of the prisoner receiving the services. The fee would not be

assessed or collected for preventative health care services, emergency services, prenatal care, diagnosis or treatment for chronic infectious diseases, mental health care, or substance abuse treatment. The bill further provides that when a Federal prisoner is

housed in a non-Federal facility (e.g., pursuant to an agreement between the Federal Government and a State or local government)

the State or local facility may assess a fee for health care services,

provided that such a fee is authorized under the law of the State
5

1Federal Prisons: Containing Health Care Costs for an Increasing Inmate Population, No.

GAO/T–GGD–00–112, at 3 (April 6, 2000)(hereinafter ‘‘GAO Report’’). 2 In this report, the term ‘‘inmate’’ is used to describe a person who has been convicted of a

Federal crime and has been incarcerated for that offense, while the term ‘‘prisoner’’ is used to

describe both inmates as well as persons who are detained pending trial. 3 Approximately, 75% of BOP inmates are paid between 12 cents and 40 cents per hour, with

the majority of BOP inmates making less than 17 cents per hour. The highest paid inmates

make approximately $1.15 per hour. 4GAO Report, at 3.

where the Federal prisoner is housed and that State prisoners are

charged no greater a fee.

BACKGROUND AND NEED FOR THE LEGISLATION

H.R. 1349 amends title 18 of the United States Code to authorize

the Director of the Bureau of Prisons (BOP) to assess and collect

a fee from prisoners for health care services provided to them. The

intent of the bill is to impose a type of ‘‘copayment fee’’ of a nominal amount on prisoners, similar to the nominal fee paid by many

Americans when they visit a health care provider under a managed

health care plan.

Currently, inmates incarcerated in the Federal prison system

and persons who are detained pending trial receive free medical

care from BOP employees (physicians, physician assistants, and

nurses) and Public Health Service (PHS) personnel (generally physician assistants, dentists, and pharmacists) assigned to each institution. Additionally, the BOP maintains contracts with medical

specialists in private practice who provide care that cannot be provided by the BOP employees and PHS personnel. For the most seriously ill inmates, the BOP operates seven Federal Medical Centers

at which are located fully accredited hospitals and facilities to care

for long-term chronically and terminally ill inmates. In fiscal year

1999, the BOP spent $372.1 million in health care costs.1

All inmates 2 in the BOP system are required to work if medically able, and all who work are paid for their labor.3 Persons detained while awaiting trial are not required to work. Wages paid

to inmates are retained in an inmate account, which inmates can

use to pay for telephone calls and purchases from the prison commissary. A prisoner’s family may deposit money into his or her account for his or her use as well.

At a hearing on H.R. 1349 held by the Subcommittee on Crime,

a representative of the Bureau of Prisons testified that some portion of the inmates who seek medical treatment at any given time

do so for the purpose of avoiding work or other rehabilitative programming which is imposed on them. Inmates know that while

they are waiting for treatment they are excused from all programming. Inmates who seek treatment without a legitimate medical

complaint waste the time of medical staff and force truly sick inmates to wait to receive the care they need. The BOP supports imposing a nominal health care co-payment fee on all prisoners for

the same reason that managed health care plans impose them on

their customers, namely, it will help deter overuse of health care

services (i.e., use of those services by people who do not really need

them).

A recent General Accounting Office report found that co-payment

fees for prison inmates have been adopted in 36 States.4 Among

States and localities that have imposed these fees, reductions in
6

5 Id. at 12.

sick call visits of from 16 to 50 percent have been realized. In its

report, 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.5

HEARINGS

The committee’s Subcommittee on Crime held 1 day of hearings

on H.R. 1349 on September 30, 1999. Testimony was received from

3 witnesses, representing 2 organizations. No additional material

was submitted.

COMMITTEE CONSIDERATION

On March 16, 2000, the Subcommittee on Crime met in open session and ordered favorably reported the bill H.R. 1349, as amended, by a voice vote, a quorum being present. On July 19, 2000, the

committee met in open session and ordered favorably reported the

bill H.R. 1349 with an amendment by voice vote, a quorum being

present.

VOTE OF THE COMMITTEE

Rollcall No. 1 (6/27/00). Mr. Scott offered an amendment to prohibit the assessment and collection of a fee for health care services

if prisoners have a ‘‘reasonable basis’’ for seeking health care services. By a rollcall vote of 9 yeas to 14 nays, the amendment was

defeated.

ROLLCALL NO. 1

Ayes Nays Present

Mr. Sensenbrenner ............................................................................................ ..................... X .....................

Mr. McCollum .................................................................................................... ..................... ..................... .....................

Mr. Gekas .......................................................................................................... ..................... X .....................

Mr. Coble ........................................................................................................... ..................... X .....................

Mr. Smith (TX) .................................................................................................. ..................... X .....................

Mr. Gallegly ....................................................................................................... ..................... ..................... .....................

Mr. Canady ........................................................................................................ ..................... X .....................

Mr. Goodlatte .................................................................................................... ..................... X .....................

Mr. Chabot ........................................................................................................ ..................... ..................... .....................

Mr. Barr ............................................................................................................. ..................... ..................... .....................

Mr. Jenkins ........................................................................................................ ..................... ..................... .....................

Mr. Hutchinson .................................................................................................. ..................... X .....................

Mr. Pease .......................................................................................................... ..................... ..................... .....................

Mr. Cannon ....................................................................................................... ..................... ..................... .....................

Mr. Rogan ......................................................................................................... ..................... X .....................

Mr. Graham ....................................................................................................... ..................... ..................... .....................

Ms. Bono ........................................................................................................... ..................... X .....................

Mr. Bachus ........................................................................................................ ..................... X .....................

Mr. Scarborough ................................................................................................ ..................... ..................... .....................

Mr. Vitter ........................................................................................................... ..................... X .....................

Mr. Conyers ....................................................................................................... X ..................... .....................

Mr. Frank ........................................................................................................... ..................... ..................... .....................

Mr. Berman ....................................................................................................... X ..................... .....................

Mr. Boucher ....................................................................................................... ..................... ..................... .....................

Mr. Nadler ......................................................................................................... X ..................... .....................

Mr. Scott ........................................................................................................... X ..................... .....................

Mr. Watt ............................................................................................................ X ..................... .....................

Ms. Lofgren ....................................................................................................... X ..................... .....................
7

ROLLCALL NO. 1—Continued

Ayes Nays Present

Ms. Jackson Lee ................................................................................................ X ..................... .....................

Ms. Waters ........................................................................................................ X ..................... .....................

Mr. Meehan ....................................................................................................... ..................... ..................... .....................

Mr. Delahunt ..................................................................................................... ..................... ..................... .....................

Mr. Wexler ......................................................................................................... ..................... ..................... .....................

Mr. Rothman ..................................................................................................... ..................... X .....................

Ms. Baldwin ...................................................................................................... X ..................... .....................

Mr. Weiner ......................................................................................................... ..................... X .....................

Mr. Hyde, Chairman .......................................................................................... ..................... X .....................

Total ................................................................................................ 9 14 .....................

Rollcall No. 2 (7/19/00). Mr Scott offered an amendment to delete

the word ‘‘chronic’’ with respect to the prohibition on collecting a

health care services fee for the treatment of chronic infectious diseases. By a rollcall vote of 9 yeas to 20 nays, the amendment was

defeated.

ROLLCALL NO. 2

Ayes Nays Present

Mr. Sensenbrenner ............................................................................................ ..................... X .....................

Mr. McCollum .................................................................................................... ..................... X .....................

Mr. Gekas .......................................................................................................... ..................... X .....................

Mr. Coble ........................................................................................................... ..................... X .....................

Mr. Smith (TX) .................................................................................................. ..................... X .....................

Mr. Gallegly ....................................................................................................... ..................... X .....................

Mr. Canady ........................................................................................................ ..................... X .....................

Mr. Goodlatte .................................................................................................... ..................... X .....................

Mr. Chabot ........................................................................................................ ..................... X .....................

Mr. Barr ............................................................................................................. ..................... X .....................

Mr. Jenkins ........................................................................................................ ..................... X .....................

Mr. Hutchinson .................................................................................................. ..................... X .....................

Mr. Pease .......................................................................................................... ..................... ..................... .....................

Mr. Cannon ....................................................................................................... ..................... X .....................

Mr. Rogan ......................................................................................................... ..................... X .....................

Mr. Graham ....................................................................................................... ..................... X .....................

Ms. Bono ........................................................................................................... ..................... ..................... .....................

Mr. Bachus ........................................................................................................ ..................... X .....................

Mr. Scarborough ................................................................................................ ..................... X .....................

Mr. Vitter ........................................................................................................... ..................... X .....................

Mr. Conyers ....................................................................................................... X ..................... .....................

Mr. Frank ........................................................................................................... X ..................... .....................

Mr. Berman ....................................................................................................... X ..................... .....................

Mr. Boucher ....................................................................................................... ..................... ..................... .....................

Mr. Nadler ......................................................................................................... X ..................... .....................

Mr. Scott ........................................................................................................... X ..................... .....................

Mr. Watt ............................................................................................................ ..................... ..................... .....................

Ms. Lofgren ....................................................................................................... X ..................... .....................

Ms. Jackson Lee ................................................................................................ ..................... ..................... .....................

Ms. Waters ........................................................................................................ X ..................... .....................

Mr. Meehan ....................................................................................................... ..................... ..................... .....................

Mr. Delahunt ..................................................................................................... ..................... ..................... .....................

Mr. Wexler ......................................................................................................... ..................... ..................... .....................

Mr. Rothman ..................................................................................................... ..................... X .....................

Ms. Baldwin ...................................................................................................... X ..................... .....................

Mr. Weiner ......................................................................................................... X ..................... .....................

Mr. Hyde, Chairman .......................................................................................... ..................... X .....................

Total ................................................................................................ 9 20 .....................
8

Rollcall No. 3 (7/19/00). Mr. Scott offered an amendment to strike

that portion of the bill that authorizes State and local governments

to assess and collect a health care services fee from Federal prisoners housed in non-Federal institutions in certain circumstances.

By a rollcall vote of 7 yeas to 21 nays, the amendment was defeated.

ROLLCALL NO. 3

Ayes Nays Present

Mr. Sensenbrenner ............................................................................................ ..................... X .....................

Mr. McCollum .................................................................................................... ..................... X .....................

Mr. Gekas .......................................................................................................... ..................... X .....................

Mr. Coble ........................................................................................................... ..................... X .....................

Mr. Smith (TX) .................................................................................................. ..................... X .....................

Mr. Gallegly ....................................................................................................... ..................... ..................... .....................

Mr. Canady ........................................................................................................ ..................... X .....................

Mr. Goodlatte .................................................................................................... ..................... X .....................

Mr. Chabot ........................................................................................................ ..................... X .....................

Mr. Barr ............................................................................................................. ..................... X .....................

Mr. Jenkins ........................................................................................................ ..................... X .....................

Mr. Hutchinson .................................................................................................. ..................... X .....................

Mr. Pease .......................................................................................................... ..................... ..................... .....................

Mr. Cannon ....................................................................................................... ..................... X .....................

Mr. Rogan ......................................................................................................... ..................... X .....................

Mr. Graham ....................................................................................................... ..................... X .....................

Ms. Bono ........................................................................................................... ..................... ..................... .....................

Mr. Bachus ........................................................................................................ ..................... X .....................

Mr. Scarborough ................................................................................................ ..................... X .....................

Mr. Vitter ........................................................................................................... ..................... X .....................

Mr. Conyers ....................................................................................................... X ..................... .....................

Mr. Frank ........................................................................................................... X ..................... .....................

Mr. Berman ....................................................................................................... ..................... ..................... .....................

Mr. Boucher ....................................................................................................... ..................... ..................... .....................

Mr. Nadler ......................................................................................................... X ..................... .....................

Mr. Scott ........................................................................................................... X ..................... .....................

Mr. Watt ............................................................................................................ ..................... ..................... .....................

Ms. Lofgren ....................................................................................................... X ..................... .....................

Ms. Jackson Lee ................................................................................................ ..................... ..................... .....................

Ms. Waters ........................................................................................................ X ..................... .....................

Mr. Meehan ....................................................................................................... ..................... X .....................

Mr. Delahunt ..................................................................................................... ..................... ..................... .....................

Mr. Wexler ......................................................................................................... ..................... ..................... .....................

Mr. Rothman ..................................................................................................... ..................... X .....................

Ms. Baldwin ...................................................................................................... X ..................... .....................

Mr. Weiner ......................................................................................................... ..................... X .....................

Mr. Hyde, Chairman .......................................................................................... ..................... X .....................

Total ................................................................................................ 7 21 .....................

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the

House of Representatives, the committee reports that the findings

and recommendations of the committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report.

COMMITTEE ON GOVERNMENT REFORM FINDINGS

No findings or recommendations of the Committee on Government Reform were received as referred to in clause 3(c)(4) of rule

XIII of the Rules of the House of Representatives.
9

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of House Rule XIII is inapplicable because this legislation does not provide new budgetary authority or increased tax

expenditures.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the

House of Representatives, the committee sets forth, with respect to

the bill, H.R. 1349, the following estimate and comparison prepared

by the Director of the Congressional Budget Office under section

402 of the Congressional Budget Act of 1974:

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE,

Washington, DC, August 3, 2000.

Hon. HENRY J. HYDE, Chairman,

Committee on the Judiciary,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 1349, the Federal Prisoner Health Care Copayment Act of 2000.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contacts are Lanette J. Keith (for

federal costs), who can be reached at 226–2860, Shelley Finlayson

(for the state and local impact), who can be reached at 225–3220,

and John Harris (for the private-sector impact), who can be

reached at 226–2618.

Sincerely,

DAN L. CRIPPEN, Director.

Enclosure

cc: Honorable John Conyers Jr.

Ranking Democratic Member

H.R. 1349—Federal Prisoner Health Care Copayment Act of 2000.

SUMMARY

Enacting H.R. 1349 would permit the Bureau of Prisons (BOP) to assess and collect a copayment fee of at least $1 for each health

care visit initiated by a prisoner (excluding those for preventative

health care services, emergency services, prenatal care, treatment

of chronic infectious diseases, mental health, or substance abuse

services). Fees collected from prisoners who are subject to an order

of restitution would be paid to victims. Of the remaining fees, 75

percent would be deposited into the Crime Victims Fund and 25

percent would be available to the Attorney General for spending on

administrative expenses incurred in carrying out the copayment

program.

CBO expects that imposing such fees would reduce the demand

for health care services from federal prisoners. We estimate that

the reduction in demand would result in net savings of less than

$5 million annually over the 2001–2005 period, assuming that future appropriations are reduced to reflect the lower health care

costs. Also, we estimate that the proposed health care copayment

would generate about $2 million in offsetting receipts (a credit
10

against direct spending) over the 2001–2005 period. Those collections would be available for spending without appropriation action.

CBO expects that there would be a lag between the collection and

the spending of such receipts, but we estimate that the net change

in direct spending would be less than $500,000 a year. Because enacting this bill would affect direct spending, pay-as-you-go procedures would apply.

H.R. 1349 contains no intergovernmental mandates as defined in

that Unfunded Mandates Reform Act (UMRA) and would impose

no costs on state, local, or tribal governments. H.R. 1349 would impose a new private sector-mandate, but CBO estimates that the direct cost of the mandate would fall well below the annual threshold

established in UMRA ($109 million in 2000, adjusted annually for

inflation).

ESTIMATED COST TO THE FEDERAL GOVERNMENT

Collecting and spending the copayment fees under H.R. 1349

would constitute direct spending, but have no significant net budgetary impact. The reduction in demand for health care services that

would likely stem from imposing those copayments would in turn

reduce the need for discretionary appropriations. CBO estimates

that potential savings would be less than $5 million a year.

Direct Spending

Based on information from the BOP, CBO estimates that under

this bill, about 400,000 health care visits by prisoners in federal

prisons would be subject to a $1 fee in fiscal year 2001. We estimate some indigent prisoners could not pay the fee, and that assessing such a fee would deter some prisoners from initiating some

visits, but we also expect that the overall prison population will

continue to increase each year. Assuming that the bill would reduce nonpreventative health care visits by between 10 percent and

25 percent, and that the prison population will increase by about

10 percent annually, CBO estimates that about $350,000 in copayments would be collected each year. Most or all such amounts

would be spent, resulting in little or no net budgetary impact.

Spending Subject to Appropriation

Based on the results of programs in some states that require

health care copayments from prisoners, CBO expects that the copayment program would reduce the number of health care visits

initiated by prisoners. As a result, the BOP would realize some

savings in health care costs. Savings would not be directly proportionate to the reduction in the number of visits because much of

the BOP’s $350 million annual spending on health services would

not be affected by this reduction. In addition, CBO estimates that

the BOP would spend about $170,000 a year to administer the copayment program and only about half of such costs would be offset

by the portion of collections made available to the Attorney General.

CBO estimates that net savings of about $1 million could be realized in fiscal year 2001. Savings could be as high as $5 million annually in subsequent years because some costs that are fixed in the

near term might be eliminated in future years. Savings in health
11

care services would be realized only to the extent that appropriations were reduced accordingly.

PAY-AS-YOU-GO CONSIDERATIONS

The Balanced Budget and Emergency Deficit Control Act sets up

pay-as-you-go procedures for legislation affecting direct spending

and receipts. H.R. 1349 would affect direct spending, but CBO estimates that the net changes in direct spending (accounting for some

lag between collections and spending) would be less than $500,000

a year.

ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS

H.R. 1349 contains no intergovernmental mandates as defined in

UMRA and would impose no costs on state, local, or tribal governments. Under certain circumstances, the bill would allow state and

local correctional institutions to charge federal prisoners in their

facilities a copayment for certain health care services. While the

fees charged by these institutions vary, CBO estimates that total

receipts to state and local governments would increase by less than

$400,000 per year.

ESTIMATED IMPACT ON THE PRIVATE SECTOR

H.R. 1349 would create a new private-sector mandate by requiring federal prisoners to make copayments for some health care visits. Based on data from the Bureau of Prisons, CBO estimates that

prisoners in federal facilities would pay about $350,000 annually in

such fees. Federal prisoners housed in state or local institutions

would also be required to pay fees in cases where those institutions

choose to charge them; such fees would amount to less than

$400,000 annually over the next five years. CBO therefore expects

that the direct cost of the federal mandate would be well below the

annual threshold established in UMRA ($109 million in 2000, adjusted for inflation) for any of the first five years that the mandate

is in effect.

PREVIOUS CBO ESTIMATE

On May 25, 1999, CBO transmitted a cost estimate for S. 704,

the Federal Prisoner Health Care Copayment Act of 1999, as reported by the Senate Committee on the Judiciary on April 29,

1999. S. 704 would set the minimum copay charge for health services in federal prisons at $2 per visit. H.R. 1349 would set the minimum charge at $1 per visit, and our cost estimates reflect this difference.

ESTIMATE PREPARED BY:

Federal Costs: Lanette J. Keith (226–2860)

Impact on State, Local, and Tribal Governments: Shelley Finlayson

(225–3220)

Impact on the Private Sector: John Harris (226–2618)

ESTIMATE APPROVED BY:

Peter H. Fontaine

Deputy Assistant Director for Budget Analysis
12

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House

of Representatives, the committee finds the authority for this legislation in Article I, section 8, clause 18 of the Constitution.

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

Sec. 1. Short Title. Section 1 of the bill states the short title of

the act as the ‘‘Federal Prisoner Health Care Copayment Act of

2000.’’

Section 2. Health Care Fees for Prisoners in Federal Institutions. Section 2 of the bill enacts new section 4048 to title 18 of the

United States Code. New section 4048 authorizes the collection of

a fee for health care services from persons in the custody of the Bureau of Prisons or who have been charged with or convicted of an

offense against the United States. Thus, the fee may be assessed

and collected from persons awaiting trial as well as from convicted

offenders.

Under new section 4048, the Director of the Bureau of Prisons

is authorized to assess and collect a fee for health care services provided to a prisoner. The amount of the fee is to be determined by

the Director pursuant to regulations promulgated by her, but in no

event may the fee be less than $1. The committee understands that

the Director plans to establish a sliding scale of fees that take into

account a prisoner’s ability to pay the fee assessed.

The fee is to be assessed and collected with respect to each

‘‘health care visit,’’ which is defined in the bill to mean any visit

to a health care provider, but not visits initiated by a prisoner pursuant to a staff referral or to obtain staff-approved follow-up treatment for a chronic condition. The bill also provides that no fee is

to be assessed or collected for preventative health care services,

emergency services, prenatal care, diagnosis or treatment for

chronic infectious diseases, mental health care, or substance abuse

treatment. The Director is to determine which specific health care

treatments fall into these broad categories. In the event that an inmate receives health care services as a result of an injury inflicted

on that prisoner by another prisoner, the bill requires that the prisoner who inflicted the injury is to be assessed the fee that otherwise would have been assessed against the prisoner receiving the

health care services.

Fees assessed under this section are to be collected by the Director from the account of the prisoner receiving the health care services. However, a prisoner may not be refused health care services

solely on the basis that the prisoner’s inmate account is insolvent

or that the prisoner is otherwise unable to pay a fee assessed under

this section. The committee expects that when medically appropriate, health care services will be provided to all prisoners regardless of their ability to pay the fee required under section 4048.

Subsection (e) of new section 4048 requires that prisoners be

given a reasonable opportunity to dispute the amount of the fee

and to dispute whether the prisoner qualifies under an exclusion

set forth in section 4048. The committee notes that the Bureau of

Prisons has an existing administrative remedy process whereby

prisoners may raise grievances and request official action. The committee expects that prisoners will use this procedure to raise issues
13

under subsection (e) of section 4048. If so, that process satisfies the

requirements of subsection (e).

Subsection (g) of section 4048 provides for the manner in which

health care fees collected under that section are to be used. If a fee

is collected from a prisoner who is subject to an order of restitution,

the amount collected is to be paid to the prisoner’s victim or victims in accordance with that order. Of the fees collected from prisoners who are not subject to restitution orders, 75% of those fees

collected are to be deposited in he Federal Crime Victims Fund and

25% are to be made available to the Attorney General to be used

to offset the administrative expenses incurred in carrying out the

requirements of section 4048.

Subsection (h) of new section 4048 requires that all prisoners receive written and oral notice of the provisions of section 4048 before any fee is collected from them under it. That subsection also

prohibits the collection of such a fee from a prisoners until 30 days

after date on which the prisoner receives the notices. This provision

simply prohibits the assessment or collection of the fee authorized

under this act during that 30 day period. The committee expects

that medically appropriate health care services will continue to be

provided during this period, notwithstanding the fact that no fee

may be assessed.

Subsection (i) provides that any regulations promulgated by the

Director of the Bureau of Prisons implementing the provisions of

section 4048 may not take effect for 30 days after the date on

which all prisoners in the prison system are provided with written

and oral notice of the provisions of the regulations, or any amendments to them, as the case may be. The subsection also prohibits

the assessment or collection of any fee under section 4048 for

health care services provided within the 30 day period after notice

of the regulations (or amendments to them) are given to prisoners.

In the case of amendments, this subsection should not be interpreted to mean that no fee may be assessed during the 30 day period, but rather that no increase in the fees to be collected resulting

from the amendment may be assessed or collected for services performed during the 30 day period. Fees may still be assessed and

collected during that period in accordance with the regulations

then in effect during that period.

Subsection (j) of new section 4048 requires that prior to the start

of any period in which the public may comment on regulations implementing section 4048, or amendments to them, the Director of

the Bureau of Prisons must give notice of the proposed regulation

to each prisoner subject to the regulation and to groups that advocate on behalf of Federal prisoners. With respect to advocacy

groups, the committee intends that this notice requirement be

deemed satisfied if the Director mails a copy of the proposed regulations or amendments thereto to the national headquarters office

of the following organizations: the American Civil Liberties Union,

Justice Fellowship, and Citizens United for the Rehabilitation of

Errants, or any successor organization to them.

Section 4048 also requires the BOP Director to submit annual reports to Congress concerning the implementation of section 4048,

including the amounts collected under that section, the cost of administering it, and an analysis of the effects of the section on the

nature and extent of health care visits by prisoners. Section 4048
14

also defines certain terms used in the new section, including ‘‘prisoner,’’ ‘‘health care visit,’’ and ‘‘health care provider.’’

Section 3. Health Care Fees for Federal Prisoners in Non-Federal

Institutions. Section 3 amends existing section 4013 of title 18 (relating to support of Federal prisoners in non-Federal institutions)

by adding new subsection (c) to that section.

New subsection (c) of section 4013 authorizes a State or local

government to assess and collect a reasonable fee from a Federal

prisoner for health care services provided to that prisoners when

the prisoner is confined in a non-Federal institution pursuant to an

agreement between the Federal Government and the State or local

government, such a fee is authorized to be collected under the law

of the State in which the Federal prisoners is housed, and the fee

does not exceed that collected from State or local prisoners for the

same services. Unlike the fee to be collected under section 4048,

the bill does not require that any minimum fee be assessed and collected. The fee may only be assessed and collected for health care

services that are provided by health care providers who are licensed or certified under State law, that constitute a ‘‘health care

visit’’ under new section 4048, and that are not the types of services described in subsection (b)(2) of new section 4048. As in the

case of fees assessed under section 4048, health care services may

not be withheld under section 4013(c) if the prisoner’s account from

which the fee would be deducted is insolvent, or if the prisoner is

otherwise unable to pay the fee assessed.

As in the case of fees to be assessed under section 4048, Federal

prisoners in State or local facilities must also be provided with 30

days oral and written notice of the fee to be imposed under section

4013(c). The State or local government is not required to provide

this notice to prisoners other than those who are Federal prisoners,

and thus subject to section 4013(c). If a State or local government

promulgates regulations or other written guidance to implement

section 4013(c), 30 days notice of the provisions of those regulations, and any amendments thereto, must be given to a prisoners

before a fee under section 4013 may be assessed against him or

her. In the case of amendments, the provision should not be interpreted to mean that no fee may be assessed during the 30 day notice period, but rather that no increase in the fees to be collected

resulting from an amendment may be assessed or collected for

services performed during the 30 day notice period. As in the case

with section 4048, in no event may a State refuse to treat a Federal prisoner on the basis that the prisoner’s inmate account is insolvent or that the prisoner is otherwise unable to pay the fee to

be assessed under section 4013.

Section 4. Comprehensive HIV/AIDS Services Required to be Included in Health Care Services for Which Health Care Fees May Be

Assessed. Section 4 of the bill requires that as a condition of assessing fees under section 4048 or 4013(c), the Director of the Bureau

of Prisons, or the State or local government, as the case may be,

must ensure that comprehensive coverage for services relating to

the virus known as HIV and the condition known as AIDS is included as part of the total program of heath care services provided

to Federal prisoners. The committee notes that the Bureau of Prisons currently provides medically appropriate treatment for the

virus and the syndrome that results from it and that, absent
15

changes in the standard of care generally accepted by the medical

community for HIV and AIDS, no additional treatment need be

provided by the Bureau of Prisons to impose the fee authorized

under section 4048.

AGENCY VIEWS

U.S. DEPARTMENT OF JUSTICE,

OFFICE OF LEGISLATIVE AFFAIRS,

Washington, DC, May 24, 1999.

Hon. MATT SALMON,

House of Representatives, Washington, DC.

DEAR CONGRESSMAN SALMON: Thank you for requesting our

views on H.R. 1349, the ‘‘Federal Prisoner Health Care Copayment

Act.’’ The Department of Justice strongly supports allowing federal

prisoners to pay fees for certain medical services. We do, however,

recommend that the terminology in Section 3 of the bill be clarified

so that it is consistent with Section 2 of the bill. We would recommend that language be added similar to that in the substitute

amendment adopted by the Senate Judiciary Committee.

Thank you again for the opportunity to comment on this important legislation. Please do not hesitate to contact us if we may be

of further assistance. The Office of Management and Budget has

advised that it has no objection to submission of this letter from

the standpoint of the Administration’s program.

Sincerely,

JON P. JENNINGS, Acting Assistant Attorney General.

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics,

existing law in which no change is proposed is shown in roman):

TITLE 18, UNITED STATES CODE

* * * * * * *

PART III—PRISONS AND PRISONERS

* * * * * * *

CHAPTER 301—GENERAL PROVISIONS

* * * * * * *

§ 4013. Support of United States prisoners in non-Federal institutions

(a) * * *

* * * * * * *

(c) HEALTH CARE FEES FOR FEDERAL PRISONERS IN NON-FEDERAL INSTITUTIONS.—
16

(1) IN GENERAL.—Notwithstanding amounts paid under

subsection (a)(3), a State or local government may assess and

collect a reasonable fee from the trust fund account (or institutional equivalent) of a Federal prisoner for health care services,

if—

(A) the prisoner is confined in a non-Federal institution

pursuant to an agreement between the Federal Government

and the State or local government;

(B) the fee—

(i) is authorized under State law; and

(ii) does not exceed the amount collected from State

or local prisoners for the same services; and

(C) the services—

(i) are provided within or outside of the institution

by a person who is licensed or certified under State law

to provide health care services and who is operating

within the scope of such license;

(ii) constitute a health care visit within the meaning of section 4048(a)(4) of this title; and

(iii) are not preventative health care services, emergency services, prenatal care, diagnosis or treatment of

chronic infectious diseases, mental health care, or substance abuse treatment.

(2) NO REFUSAL OF TREATMENT FOR FINANCIAL REASONS.— Nothing in this subsection may be construed to permit any refusal of treatment to a prisoner on the basis that—

(A) the account of the prisoner is insolvent; or

(B) the prisoner is otherwise unable to pay a fee assessed under this subsection.

(3) NOTICE TO PRISONERS OF LAW.—Each person who is or

becomes a prisoner shall be provided with written and oral notices of the provisions of this subsection and the applicability of

this subsection to the prisoner. Notwithstanding any other provision of this subsection, a fee under this section may not be assessed against, or collected from, such person—

(A) until the expiration of the 30-day period beginning

on the date on which each prisoner in the prison system is

provided with such notices; and

(B) for services provided before the expiration of such

period.

(4) NOTICE TO PRISONERS OF STATE OR LOCAL IMPLEMENTATION.—The implementation of this subsection by the State or

local government, and any amendment to that implementation,

shall not take effect until the expiration of the 30-day period beginning on the date on which each prisoner in the prison system

is provided with written and oral notices of the provisions of

that implementation (or amendment, as the case may be). A fee

under this subsection may not be assessed against, or collected

from, a prisoner pursuant to such implementation (or amendments, as the case may be) for services provided before the expiration of such period.

(5) NOTICE BEFORE PUBLIC COMMENT PERIOD.—Before the

beginning of any period a proposed implementation under this

subsection is open to public comment, written and oral notice

of the provisions of that proposed implementation shall be pro-
17

vided to groups that advocate on behalf of Federal prisoners

and to each prisoner subject to such proposed implementation.

* * * * * * *

CHAPTER 303—BUREAU OF PRISONS

Sec.

4041. Bureau of Prisons; director and employees.

* * * * * * *

4048. Fees for health care services for prisoners.

* * * * * * *

§ 4048. Fees for health care services for prisoners

(a) DEFINITIONS.—In this section—

(1) the term ‘‘account’’ means the trust fund account (or institutional equivalent) of a prisoner;

(2) the term ‘‘Director’’ means the Director of the Bureau of

Prisons;

(3) the term ‘‘health care provider’’ means any person who

is—

(A) authorized by the Director to provide health care

services; and

(B) operating within the scope of such authorization;

(4) the term ‘‘health care visit’’—

(A) means a visit, as determined by the Director, by a

prisoner to an institutional or noninstitutional health care

provider; and

(B) does not include a visit initiated by a prisoner—

(i) pursuant to a staff referral; or

(ii) to obtain staff-approved follow-up treatment for

a chronic condition; and

(5) the term ‘‘prisoner’’ means—

(A) any individual who is incarcerated in an institution under the jurisdiction of the Bureau of Prisons; or

(B) any other individual, as designated by the Director,

who has been charged with or convicted of an offense

against the United States.

(b) FEES FOR HEALTH CARE SERVICES.—

(1) IN GENERAL.—The Director, in accordance with this section and with such regulations as the Director shall promulgate

to carry out this section, may assess and collect a fee for health

care services provided in connection with each health care visit

requested by a prisoner.

(2) EXCLUSION.—The Director may not assess or collect a

fee under this section for preventative health care services,

emergency services, prenatal care, diagnosis or treatment of

chronic infectious diseases, mental health care, or substance

abuse treatment, as determined by the Director.

(c) PERSONS SUBJECT TO FEE.—Each fee assessed under this

section shall be collected by the Director from the account of—

(1) the prisoner receiving health care services in connection

with a health care visit described in subsection (b)(1); or

(2) in the case of health care services provided in connection

with a health care visit described in subsection (b)(1) that results from an injury inflicted on a prisoner by another prisoner,
18

the prisoner who inflicted the injury, as determined by the Director.

(d) AMOUNT OF FEE.—Any fee assessed and collected under this section shall be in an amount of not less than $1.

(e) NO CONSENT REQUIRED.—Notwithstanding any other provision of law, the consent of a prisoner shall not be required for the

collection of a fee from the account of the prisoner under this section. However, each such prisoner shall be given a reasonable opportunity to dispute the amount of the fee or whether the prisoner

qualifies under an exclusion under this section.

(f) NO REFUSAL OF TREATMENT FOR FINANCIAL REASONS.— Nothing in this section may be construed to permit any refusal of

treatment to a prisoner on the basis that—

(1) the account of the prisoner is insolvent; or

(2) the prisoner is otherwise unable to pay a fee assessed

under this section.

(g) USE OF AMOUNTS.— (1) RESTITUTION OF SPECIFIC VICTIMS.—Amounts collected

by the Director under this section from a prisoner subject to an

order of restitution issued pursuant to section 3663 or 3663A

shall be paid to victims in accordance with the order of restitution.

(2) ALLOCATION OF OTHER AMOUNTS.—Of amounts collected

by the Director under this section from prisoners not subject to

an order of restitution issued pursuant to section 3663 or

3663A—

(A) 75 percent shall 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

(B) 25 percent shall be available to the Attorney General for administrative expenses incurred in carrying out

this section.

(h) NOTICE TO PRISONERS OF LAW.—Each person who is or becomes a prisoner shall be provided with written and oral notices of

the provisions of this section and the applicability of this section to

the prisoner. Notwithstanding any other provision of this section, a

fee under this section may not be assessed against, or collected from,

such person—

(1) until the expiration of the 30-day period beginning on

the date on which each prisoner in the prison system is provided with such notices; and

(2) for services provided before the expiration of such period.

(i) NOTICE TO PRISONERS OF REGULATIONS.—The regulations

promulgated by the Director under subsection (b)(1), and any

amendments to those regulations, shall not take effect until the expiration of the 30-day period beginning on the date on which each

prisoner in the prison system is provided with written and oral notices of the provisions of those regulations (or amendments, as the

case may be). A fee under this section may not be assessed against,

or collected from, a prisoner pursuant to such regulations (or

amendments, as the case may be) for services provided before the expiration of such period.

(j) NOTICE BEFORE PUBLIC COMMENT PERIOD.—Before the beginning of any period a proposed regulation under this section is
19

open to public comment, the Director shall provide written and oral

notice of the provisions of that proposed regulation to groups that

advocate on behalf of Federal prisoners and to each prisoner subject

to such proposed regulation.

(k) REPORTS TO CONGRESS.—Not later than 1 year after the

date of the enactment of the Federal Prisoner Health Care Copayment Act of 2000, and annually thereafter, the Director shall transmit to Congress a report, which shall include—

(1) a description of the amounts collected under this section

during the preceding 12-month period;

(2) an analysis of the effects of the implementation of this

section, if any, on the nature and extent of heath care visits by

prisoners;

(3) an itemization of the cost of implementing and administering the program;

(4) a description of current inmate health status indicators

as compared to the year prior to enactment; and

(5) a description of the quality of health care services provided to inmates during the preceding 12-month period, as compared with the quality of those services provided during the 12-

month period ending on the date of the enactment of such Act.

* * * * * * *

(21)

1 429 U.S. 97 (1976)

2DeShaney v. Winnebago County DSS, 489 U.S. 189 (1989) 3 Ibid at 199–200.

DISSENTING VIEWS

H.R. 1349, as amended authorizes the Bureau of Prisons (BOP)

to assess and collect a fee from inmates for health care services

provided to the inmate during a health care visit. The bill provides

for the Director of the BOP to set the fee per visit, but further provides that it shall be in an amount not less than one dollar. H.R.

1349 prohibits an assessment for preventative health care services,

staff referrals, staff approved follow-up treatment, emergency visits, prenatal care, diagnosis or treatment of chronic infectious diseases, mental health care, or substance abuse treatment, and further provides that BOP cannot refuse treatment to an inmate because of an inability to pay the designated fee. Funds collected

under this bill are to be used to pay victim restitution. If there is

no order of restitution, 75% goes to the Crime Victims Fund and

25% is available to BOP to defer administrative expense of the program.

The Supreme Court has recognized the government’s obligation

to provide health care. The U.S. Supreme Court, in Estelle v. Gamble 1 enunciated the principle that the government has an obligation to provide medicare to prisoners and this principle has been

upheld in subsequent cases 2. In DeShaney v. Winnebago County

DSS, the court stated:

When the State by affirmative exercise of its power so restrains an individual’s liberty that it renders him unable

to care for himself, and at the same time fails to provide

for his basic human needs—e.g., food, clothing, shelter,

medical care, and reasonable safety—it transgresses the

substantive limits on State actions set by the eight amendment and the due process clause.3

Given the limited amounts of money on hand in federal prisoner

accounts at any given time, a health care co-payment requirement

may impede their access to needed health care, particularly at the

early treatment and intervention stage. BOP acknowledges that

75% of BOP inmates are paid between 12 cents and 40 cents per

hour, with the majority of BOP inmates making less than 17 cents

per hour. Further, BOP reports that more than half of all BOP inmates have no more than $60 in their accounts at any time, including the day immediately after their monthly pay period. Thus, even

a minor co-pay would constitute a significant burden on them. Establishing such a prerequisite to health care treatment not only undermines the federal government’s obligation to provide medical

care to inmates, as discussed in DeShaney, it constitutes bad public

policy. An inmate’s failure to get timely treatment could result in
22

minor problems becoming major problems, such as the spread of

untreated infectious diseases.

There is also a significant question as to whether the cost of administering the program will be greater than any savings it

projects. Proponents of the legislation point to States which have

instituted inmate health care co-payments to suggest that co-pays

work to discourage unnecessary use of health care services and

save the States money without jeopardizing the health of inmates.

However, this information appears anecdotal at best. The only

study of the issue anyone has been able to identify is a study by

the California State Auditor. This study found that the California

Department of Corrections’ annual co-pay program collections

amounted to less than 1⁄3 ($654,000) of the estimated annual collections ($1.7 million) and that the estimated annual cost of administering the program ($3.2 million) amounted to almost five times

the annual collections.

In addition, the proponents’ argument that a co-pay will deter inmate abuse of health care services lacks merit. Obviously, inmates

with substantial amounts of money on account will not be deterred

by a dollar or so co-pay from seeking unnecessary health care and

inmates have to pay a co-pay even if they are sick. Therefore, the

more likely effect of H.R. 1349 is that ability to pay will be the determining factor as to whether inmates seek health care, not

whether the prisoner truly needs medical attention. Thus, it was

not surprising when the BOP witness acknowledged at the hearing

on H.R. 1349 that there is no way to know how many truly sick

inmates would be deterred because of the cost, as opposed to those

abusing the system. Furthermore, since even those that are determined to be truly sick must pay, it appears that the real purpose

of the bill is to simply deter inmates from seeking health care, regardless of whether they need it or not. Consistent with this goal,

the majority opposed amendments which would require a co-payment only if the inmate is found to have had no reasonable basis

for seeking health care services.

In conclusion, this bill will likely result in inmates having to

choose between needed health care services and other crucial

needs, and in more, as opposed to less, cost to taxpayers.

JOHN CONYERS, JR.

BARNEY FRANK.

HOWARD L. BERMAN.

ROBERT C. SCOTT.

MELVIN L. WATT.

ZOE LOFGREN.

MAXINE WATERS.
(23)

ADDITIONAL DISSENTING VIEWS

In addition to the concerns raised in our dissenting views, we

would also like to note that the sponsors of this bill have argued

that, if prisoners can pay for their health care, they should. They

argue that taxpayers should not be subsidizing prisoners health

care. Our concern is this sets up a double standard. If we are concerned about wasteful, taxpayer-supported health care subsidies,

we should be asking: What about Members of Congress?

One floor down from the committee offices, we have a nurse on

call whenever the House is in session. We receive medical attention, treatment and medicine for a small yearly fee, the rest of the

expense is paid by the taxpayers.

Because of this discrepancy, at the committee markup, we offered

an amendment requiring that Members of Congress pay a health

care copay, in keeping with the Congressional Accountability Act

that made Congress live by the laws it passes. The majority raised

a point of order against the amendment and refused to even debate

it. This was unfortunate. Why should a Member of Congress get

medical evaluation compensated by taxpayers? Why should a Member of Congress get Tylenol without paying the same amount as

working American families? Why should the taxpayer be any less

concerned about subsidizing the health care of Members of Congress, who earn more than $100,000 a year, than they are about

prisoners, who earn less than 50 cents an hour?

This double standard is yet another reason why we have expressed concerns about the underlying legislation.

JOHN CONYERS, JR.

MAXINE WATERS.

Æ