January 27, 2012

IV. Aging Bodies, Soaring Costs

Elderly inmates pose a minimal threat to society, they require special attention and care, and as a group they consume a disproportionate amount of correctional funds.
— Herbert J. Hoelter, “Imprisoning Elderly Offenders”
[O]lder inmates have more health problems, generally consume more health services, and are prescribed more medications than younger inmates…. Regardless of the increased demand these individuals place on the system, their numbers are steadily increasing and they will continue to consume a disproportionate share of the limited resources available for health care and programmatic enhancements within the correctional setting.
— State of Florida Correctional Medical Authority, “2009-2010 Annual Report and Report on Aging Inmates”

Incarcerated men and women have a constitutional right to healthcare.[153] International human rights law also mandates that persons deprived of their liberty receive healthcare.[154] Older prisoners are at least two to three times as expensive to incarcerate as younger prisoners, primarily because of their greater medical needs.[155] Our research shows prison medical expenditures for older inmates range from three to nine times higher than those for the average inmate.[156]

The prevalence of illness and disability increases with age in prison, as in the community. The challenge for correctional systems is not only to provide for current needs, but to ensure projected needs can be met in the future. As the Tennessee Department of Corrections noted:

[E]ven if the rate of growth of the elderly is only moderate, any anticipated growth in this population requires appropriate planning due to the resources required to meet their additional needs (additional medical staff, pharmaceuticals, medical equipment and treatment, etc).[157]

Age and Infirmity

Like their community-dwelling counterparts, older prisoners are susceptible to the chronic diseases and infirmities associated with age, including heart and lung problems, diabetes, hypertension, cancer, ulcers, poor hearing and eyesight, and a range of physical disabilities.[158]

A recent survey found that 46 percent of male inmates 50 years or older and 82 percent of inmates 65 years or older have a chronic physical problem.[159] In Ohio, 32 percent of the older inmates are in chronic care clinics.[160] Data from Florida shows that relative to their share of the total prison population, prisoners age 50 or over are disproportionately enrolled in chronic illness clinics, and account for a disproportionate share of all medical contacts.[161] In California, inmates age 55 or older, who are 7 percent of the prison population, consume 38 percent of prison medical beds.[162] At Georgia’s Augusta State Medical Prison, which provides acute care, specialized medical and mental health services, assisted living, and chronic care, 27 percent of the prison inmates are age 50 or over.[163]

Older inmates not only have more infirmities than younger, but the nature of their diseases and the responses required tend to be different. As David Runnels, of California’s Correctional Health Care Services, explained to Human Rights Watch:

In young people, disease tends to be an acute, single episode to be treated [and which once treated] requires little further care. In older individuals, disease is often a chronic, progressive process. Recovery is slower and the care of these illnesses must be over years or even a lifetime. Surgery, medications, therapy, and multiple types of medical providers and specialists are involved. Hospitalizations, nursing home stays, and procedures are needed. All this must be coordinated to provide good care…. We have seen the elderly population grow from 2% to a projected 10% by 2013. This growth requires that we reconfigure the existing system and make both physical plant and clinical services delivery changes to accommodate the specialized needs of the elderly population.[164]

Meeting the medical needs of older prisoners requires a range of medical staff and facilities offering different levels of care. An example of the need of elderly offenders for nursing care and support is evident in the following data from Connecticut: among inmates age 60 or over, 10.7 percent have no current physical problems requiring nursing attention; 28.5 percent have a sub-acute or chronic disease that requires occasional nursing attention; 50.7 percent need predictable access to nursing care 16 hours a day, seven days a week; 7.4 percent need 24-hour access to nursing care and there is a reasonable likelihood that from time to time they will need 24-hour actual nursing care; and 2.7 percent need 24-hour nursing care, possibly for an extended time.[165]

Medical Expenditures for Older Inmates

Prison medical care accounts for a significant part of correctional budgets. In California, for example, one-third of the annual per capita cost of each inmate is for medical, mental health, and dental care.[166] In Virginia, medical expenditures account for 15 percent of the state’s correctional operating expenses.[167]

Older prisoners are responsible for a disproportionate share of prison medical expenses. As geriatric specialist Dr. Brie Williams summarizes:

[T]he increased burden of illness, disability, and special needs among geriatric prisoners makes them expensive…. As it is in the community, older age is among the strongest predictors of morbidity and medical care utilization. The high cost is due to higher healthcare expenses among geriatric prisoners including hospitalization, medications, diagnostic tests, and skilled nursing care.[168]

A recent effort to assess the impact of age on healthcare costs nationally concluded that the average annual cost per prisoner was $5,482, but that for prisoners age 55 to 59, the amount was $11,000, and the figure steadily increased with age cohorts, reaching $40,000 for prisoners age 80 or over.[169]

Many states do not track per capita medical costs for inmates by age. Nevertheless, data from some of those that do testify to the significantly greater medical costs associated with older prisoners. For example:

  • In California, the contract medical services expenditures for inmates 55 years or older is twice that of younger inmates. Inmates 55 and over constitute about 7 percent of the prison population and account for about 38 percent of medical bed resources. “If the utilization rate continues and population projections for the aged do not change, by 2012 over 50 [percent] of the medical bed resources will be used by inmates 55 years and older.”[170]
  • In Florida, the 16 percent of the prison population that is age 50 or over accounts for 40.1 percent of all episodes of care and 47.9 percent of all hospital days. Such inmates have twice the number of sick calls as younger inmates, represent 35 percent of chronic clinic contacts and ambulatory surgeries, and have three times as many drug prescriptions as the average inmate. Twenty-four percent of all prescription drugs costs were spent on drugs for them.[171]
  • In Georgia, incarcerated individuals age 65 years or older had an average yearly medical cost of $8,565, compared to an average medical cost for those under 65 of $961.[172] Those 50 years of age and older constituted 14 percent of the prison population in 2009, but accounted for 40 percent of outside medical expenditures.[173] In 2011, inmates age 50 or over accounted for half of the 100 “most expensive” inmates in terms of outside medical expenditures.[174]
  • In Michigan, the average annual healthcare costs for prison inmates has been estimated at $5,801; the cost for inmates age 34 or under is $4,200 or less, and the cost for inmates age 55 or older ranges from $11,000 to $40,000.[175]
  • In Nevada, per capita costs for medical services provided outside the prison averaged $4,000 to $5,000 per year for inmates over 60 compared to an annual per capita average for all prisoners of $1,000.[176]
  • In North Carolina, the average per capita cost for healthcare (dental, medical, and mental health, whether provided within the prison system or by outside hospitals and providers) was $5,970 for inmates 50 or older, compared to an average per capita cost of $1,980 for all prisoners. Indeed, the cost for inmates 50 or over is more than twice as much as the cost for inmates age 40 to 49.[177]
  • In Oklahoma, healthcare expenses for inmates age 55 to 64 are more than twice as much as those for the 19 to 44 age group.[178] Specialty care and hospitalization costs average $6,231 for inmates over 55 and $4,911 for those who are younger.[179]
  • In Texas, although elderly inmates represent only 5.4 percent of the inmate population, they account for more than 25 percent of hospitalization costs. The healthcare cost per day in fiscal year 2005 for an elderly offender was $26, compared to $7 per day for the average offender.[180] In fiscal year 2010, the state paid $4,853 per elderly offender for healthcare compared to $795 for inmates under 55.[181]
  • In Virginia, the average inmate under the age of 50 has annual offsite medical costs of almost $800 while the average inmate age 50 or older had annual offsite medical costs of $5,400.[182]

Regardless of costs, states must provide adequate healthcare for all inmates, including those who are older, if they are to uphold their duties under human rights and constitutional law. Unfortunately, some states fall short. One of the most infamous recent examples is California, which is currently under a medical receivership because of decades-long deficiencies in the medical and mental health treatment it provided its inmates, and which is also under a court order (upheld by the US Supreme Court) to reduce prison overcrowding so that the unconstitutionally deficient medical and mental health services can be remedied.[183] Older prisoners have suffered from the grossly deficient medical services that characterized California prisons, and they are benefitting from the improvements that are now being made.

Older inmates also benefit from class actions challenging discrimination against prisoners with disabilities in violation of the Americans with Disabilities Act. Thus, for example, elderly prisoners in Colorado who have mobility and other physical impairments have benefited from the 1997 settlement of Marquiz v. Romer requiring reasonable accommodation of prisoners with disabilities.[184] Similarly, there are two named plaintiffs who are over 55 years of age among the named plaintiffs in Holmes v. Godinez, a federal class action brought by Illinois prisoners who are deaf or hard of hearing.[185] The complaint in the lawsuit alleges, inter alia, violations of the Americans with Disabilities Act because the Illinois Department of Corrections does not provide the assistance hearing-impaired prisoners need to communicate effectively and to participate in prison programs and services.

Reimbursement for Medical Costs

State prison systems and the federal system both face the burden of financing constitutionally required healthcare for an aging prison population. The costs of providing medical treatment to inmates while inside prison are excluded from federal health insurance programs such as Medicare and Medicaid. States must cover the full cost of meeting prisoners’ medical, mental health, and dental needs.

Although under the 1965 law that created Medicaid anyone entering state prison loses Medicaid coverage, in 1997 the federal government said that there would be Medicaid reimbursement available for the bills of prison inmates who stay in private or community hospitals for more than 24 hours. (Technically, those who stay in the hospital for 24 hours or more are no longer considered prison inmates for the duration of their stay.) Pursuant to the 1997 policy, the possibility of reimbursement was limited to otherwise Medicaid-eligible inmates (for example, low income juveniles, pregnant women, adults with disabilities, and certain elderly persons). Only six states to date have taken advantage of the opportunity for such Medicaid coverage. Recent changes in Medicaid will expand the potential of Medicaid coverage for inmates. In 2014, anyone with an income below 133 percent of the federal poverty line will become Medicaid eligible, which probably includes most inmates since they have little or no income. The potential savings for states will be significant, since not only will corrections agencies be able to get federal reimbursement for 50 to 84 percent of outside hospitalization costs for inmates, they will also benefit from the lower fees hospitals can charge for Medicaid patients.[186]

While Medicaid may help states defray some of the costs associated with hospital care provided outside the prison system, it will do nothing to relieve states of the considerable costs of transporting incarcerated men and women to and from outside service providers, nor will it help with the costs of providing officers to guard offenders while they are receiving community-based treatment. One or more corrections officers are posted 24 hours a day to watch inmates who are being treated in community hospitals.

[153] Prisons that exhibit “deliberate indifference to serious medical needs” may be liable for violations of the 8th Amendment prohibition of cruel and unusual punishment. Estelle v. Gamble, 429 US 97 (1976).

[154] The International Covenant on Economic, Social and Cultural Rights recognizes the “right of everyone to the highest attainable standards of health.” ICESCR, art. 11. As the US has not ratified the ICESCR it is not legally binding in total on the US, however as a signatory the US does undertake a number of legal obligations including, at a minimum, to take no action that would undermine the intent and purpose of the treaty. Vienna Convention on the Law of Treaties, adopted May 23, 1969, entered into force January 27, 1980, article 18. The United States is a party to the International Covenant on Civil and Political Rights (ICCPR), which guarantees to all persons the right to life, to be free from cruel, inhuman or degrading treatment; and if deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person. ICCPR, arts. 6, 7, 10(1). Under the ICCPR, governments must provide “adequate medical care during detention.” Pinto v. Trinidad and Tobago (Communication No. 232/1987) Report of the Human Rights Committee, vol. 2, UN Doc A/45/40, p. 69. The United States is also a party to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. CAT. Failure to provide adequate medical care can violate article 16 of CAT which prohibits cruel, inhuman or degrading treatment. United Nations Committee against Torture (CAT), “Concluding Observations: New Zealand,” (1998) UN Doc. A/53/44, para. 175.

[155]Anno et al., “Correctional Healthcare.”

[156] In 1998 the National Center on Institutions and Alternatives estimated that the cost of incarcerating an elderly offender was $69,000 a year, more than three times the cost for the average inmate of $22,000. Hoelter, “Imprisoning Elderly Offenders,” p.4.

[157]Tennessee Department of Correction, “Future Felon Population of the State of Tennessee FY 2007-2008,” March 2008, http://www.tn.gov/correction/pdf/pop-proj08.pdf (accessed July 10, 2011), p. 30.

[158]For an overview of prisoners’ health conditions, see Williams and Abraldes, “Growing Older,” p. 56; Anno et al., “Correctional Healthcare”; and Aday, “Aging Prisoners.”

[159]Anthony A. Sterns et al., “The Growing Wave of Older Prisoners: A National Survey of Older Prisoner Health, Mental Health and Programming,” Corrections Today, October 2008, http://www.aca.org/fileupload/177/ahaidar/Stern_Keohame.pdf (accessed December 13, 2011).

[160]Data provided to Human Rights Watch by Francisco Pineda, warden, Hocking Correctional Facility, Nelsonville, Ohio, May 16, 2011.

[161]State of Florida Correctional Medical Authority, “Report on Elderly and Aging Inmates in the Florida Department of Corrections,” December 2005, p. 8.

[162]According to the California Department of Corrections and Rehabilitation (CDCR) “to the extent that the use of medical beds reflects the overall use of medical healthcare resources, by 2012 CDCR can expect that over 50 percent of all medical care expenditures will be associated with inmates over the age of 55.”California Department of Corrections and Rehabilitation, “Aging of the Inmate Population and Potential Impact on Healthcare Resources,” undated memorandum provided to Human Rights Watch.

[163]Data provided to Human Rights Watch by Dennis Brown, warden, Augusta State Medical Prison, Grovetown, Georgia, on June 28, 2011.

[164]Information provided in “Response to Questions from Human Rights Watch Program,” Human Right Watch email correspondence with David Runnels, California Correctional Health Care Services, May 6, 2011, p.3.

[165] Data provided to Human Rights Watch by Dr. Robert Trestman, executive director, Correctional Managed Health Care, July 19, 2011.

[166] Of the average annual cost per inmate of $48,536, approximately $16,000 goes to healthcare costs. California Department of Corrections and Rehabilitation, “Corrections: Moving Forward, Annual Report 2009,” http://www.cdcr.ca.gov/News/Press_Release_Archive/2009_Press_Releases/docs/CDCR_Annual_Report.pdf (accessed November 29, 2011), p. 8.

[167] David Sherfinski, “Older, sicker inmates add to costs in Virginia jails,” The Washington Times, October 17, 2011.

[168] Williams and Abraldes, “Growing Older,” p. 58.

[169] Steve Angelotti and Sara Wycoff, Michigan Senate Fiscal Agency, “Michigan’s Prison Health Care: Costs in Context,” November 2010, p. 16.

[170]Human Rights Watch email correspondence with David Runnels, California Correctional Health Care Services, May 6, 2011.

[171]State of Florida Correctional Medical Authority, “2009-2010 Annual Report and Report on Aging Inmates,” pp. 16, 59-61.

[172]Data on medical costs from “Conference on Aging,” May 3, 2010, PowerPoint presentation provided to Human Rights Watch by Sharon R. Lewis, statewide medical director, Georgia Department of Corrections, June 28, 2011, on file at Human Rights Watch.

[173]Ibid.

[174]Data provided to Human Rights Watch by James Degroot, Georgia Department of Corrections, July 8, 2011, on file at Human Rights Watch.

[175]Angelotti and Wycoff, “Michigan’s Prison Health Care,” p. 15.

[176]Human Rights Watch telephone interview with Chuck Schardin, Medical Administration, Nevada Department of Corrections, August 30, 2011.

[177]Data provided to Human Rights Watch in email correspondence with Keith Acree, North Carolina Department of Corrections, July 28, 2011.

[178]Oklahoma Department of Corrections, “Managing Increasing Aging Inmate Populations,” http://www.doc.state.ok.us/adminservices/ea/aging%20white%20paper.pdf, p. 7.

[179]Williams, “The Aging Inmate Population,” p. 21.

[180]Ibid., p. 24.

[181]Renee C. Lee, “A growing burden: as more elderly prisoners serve time, state officials struggle to pay their medical costs,” Houston Chronicle, May 15, 2011.

[182]Sherfinski, “Older, sicker inmates add to costs in Virginia jails.” In 2008, according to the Virginia Department of Corrections, the average inmate age 50 or older had annual offsite medical costs of $3,350. Virginia Department of Corrections, “A Balanced Approach.”

[183]Brown v. Plata, United States Supreme Court, 131 S. Ct 1910 (2011).

[184]Marquiz v. Romer, 92-k-1470 (D. Colorado), unreported.

[185]Holmes v. Godinez, Case 1:11-cv-02961, class action complaint filed in federal district court in the northern district of Illinois on May 4, 2011. Human Rights Watch email correspondence with Alan Mills, attorney, Uptown People’s Law Center, December 13 and 14, 2011.

[186]Christine Vestal, “Medicaid Expansion Seen Covering Nearly all State Prisoners,” Governing, October 18, 2011, www.governing.com/blogs/politics/Meddicaid-Expansion-covering-Nearly-All-State-Prisoners.html (accessed November 29, 2011).