Prison healthcare budget falls predictably short

This news should come as no surprise to Grits readers, but Mike Ward reported in Friday's Austin Statesman ("Report: Texas prison health costs higher than thought," May 6) that:

The cost of providing health care to Texas' 154,000 imprisoned criminals during the next two years will likely exceed the amounts allocated in both the Senate- and House-approved versions of the state budget, a new financial analysis shows.

The report on the University of Texas Medical Branch at Galveston's costs appears to validate the university's earlier assertions that it was losing money on providing the care, and it projects that the prison care could cost $930 million over the next two years — far more than either legislative chamber has appropriated so far.

The new figures counter an earlier "report that triggered intense criticism of the medical school and has prompted a lobbying rush by private companies who contend they can do the job for much less." Bottom line, the latest analysis found that:

In recent years, UTMB and Texas Tech have claimed losses totaling more than $60 million for providing the care, requiring supplemental appropriations several times from the Legislature.

The new financial review projects that the losses will continue for UTMB. Texas Tech costs were not examined.

In 2010, the summary shows, UTMB lost as much as $26.8 million — with actual costs listed at $436.1 million, for which the university was paid only $409.3 million.

During the 2012-13 budget period, the report estimates, the costs for UTMB to provide prison health care could range from $879.6 million to as much as $930 million — depending on whether costs for some physicians, interns and residents are included.

Madden acknowledged that the numbers in the report are significant, "if they prove correct, which I think they will."

This should come as no surprise; it was predictable and predicted; Grits calculated when the budget passed that prison healthcare was underfunded by $126.5 million over the biennium, and here we are, facing projections right at that amount. The lesson: It's possible to significantly cut prison health costs, but not without reducing the size of the prison population. They can't just cut on paper; the state must change policies to reduce costs.

'Life, With Dementia'

Here's a notable New York Times feature and editorial on some of the unique healthcare problems facing the growing cadre of senior-citizen inmates in American prisons with dementia, a phenomenon resulting from long prison sentences meted out over the last several decades:

• Dementia Behind Bars
• The Vanishing Mind: Life, With Dementia

Here's a summary tidbit from the main story:

Dementia in prison is an underreported but fast-growing phenomenon, one that many prisons are desperately unprepared to handle. It is an unforeseen consequence of get-tough-on-crime policies — long sentences that have created a large population of aging prisoners. About 10 percent of the 1.6 million inmates in America’s prisons are serving life sentences; another 11 percent are serving over 20 years.

And more older people are being sent to prison. In 2010, 9,560 people 55 and older were sentenced, more than twice as many as in 1995. In that same period, inmates 55 and older almost quadrupled, to nearly 125,000, a Human Rights Watch report found.

The editorial puts it even more starkly, echoing themes regular Grits readers will recognize: "According to a report from Human Rights Watch, in 2010 roughly 125,000 of the nation’s 1.5 million inmates were 55 years of age and over. This represented a 282 percent increase between 1995 and 2010, compared with a 42 percent increase in the overall inmate population. If the elderly inmate population keeps growing at the current rate, as is likely, the prison system could soon find itself overwhelmed with chronic medical needs."

Most of the main story is about a California program that trains inmates with good behavior records to provide care for inmates with dementia, Alzheimer's, or other such disabilities. But Texas and other high-incarceration states face similar dynamics. Older prisoners are both one of the fastest growing segments of the inmate population and among the most costly, mainly because of high healthcare expenses.

Just as society increasingly uses prisons and jails in lieu of mental hospitals, they're beginning to also replace nursing home beds for a small but rapidly growing class of elderly prisoners. Over the next five to ten years Grits expects this to become one of the central challenges of modern prison management, not to mention a source of increasingly poignant moral conundrums for the legislature and the parole board. There are no easy answers for the questions that arise when the end of life nears, either for families when tasked with such decisions or the state when acting in loco parentis.

Medical paroles plummeting while TDCJ-UTMB wrangle over healthcare costs

The Dallas News reports ("Fewer seriously ill Texas inmates being released on medical paroles," Feb. 20) that medical parole rates are at their lowest in years and that Texas' Board of Pardons and Paroles may approve fewer medical paroles in FY 2012 (they'll hit 33, at the current rate) than at any time in recent memory, despite TDCJ facing prison healthcare costs more than nine figures greater than the Legislature budgeted.:

Each of the past three fiscal years, the Texas Department of Criminal Justice said its medical providers — the University of Texas Medical Branch at Galveston and Texas Tech — referred more cases for medical release. There were 1,318 referrals in 2009 and 1,807 cases in 2011.

Another government office, the Texas Correctional Office on Offenders with Medical or Mental Impairments, narrows that pool and presents cases to the state Board of Pardons and Paroles.

In fiscal year 2011, 349 cases were formally presented for medical release, and 100 cases, or 29 percent, won approval. The previous year, 22 percent were approved. Almost always, the parole board makes the decision. In a few state jail cases, the sentencing judge decides.

Each year, some inmates approved for release die before they can be freed or their cases are reconsidered.

So far this fiscal year, from September through December, the board has approved only 16 of the 125 cases presented, or 13 percent.

The Legislative Budget Board, which monitors state spending, told lawmakers in January 2011 that expediting the release of inmates who need high-cost medical care could save the state an average of $10,545 per year per inmate. The board noted that inmates are not eligible for Medicare or Medicaid while in prison, so the state pays the full cost of care.

Strange and troublesome - from the perspective of reducing prison medical costs - that in 2011, doctors recommended more than 1,800 people for medical release, but only 349 were presented to the board, which approved less than a third of those. Most inmates/patients recommended by their doctors for medical parole are getting screened out by TDCJ parole staff (according to some criteria not described in the article) before the board ever hears about them.

The Board of Pardons and Paroles, of course, is functionally separate from TDCJ, but historically they have acted somewhat in tandem, particularly back when Rissie Owens' husband, Ed, ran TDCJ's institutional division. So it's a bit of a surprise that the parole board isn't doing more to help TDCJ out on the health-cost question, though of course they're under no obligation to do so.

Grits recognizes the board has discretion, but they should at least consider all the recommendations doctors send them. TDCJ is seriously over-budget on health care, with its major provider (UTMB) at this point outright rebelling, so paroling some of the sickest, most expensive inmates could help relieve pressure. I'd have expected to see them considering and approving more medical paroles in 2012 given the current funding situation. As it turns out, it's been substantially less.

UTMB begins "transfer" of prison health services to TDCJ; are they up to it?

At the Galveston Daily News, Heber Taylor reports that, despite months of negotiation between the Texas Department of Criminal Justice and the UT Medical Branch (UTMB) over providing inmate health care:

there is no agreement.

Dr. David L. Callender, president of the medical branch, let the staff know that the transition has begun to transfer the health services to the corrections department.

The basic problem is money.

The University of Texas System has made it clear its not going to continue to subsidize care for prisoners from university funds.

The Texas Department of Criminal Justice didn’t get the money from the legislature to pay the full cost of the care.

This is not the kind of problem two state agencies can resolve.

Somebody with money simply has to pay the bill.

Ordinary taxpayers should be watching this because the state’s not going to save money by taking the Correctional Managed Care Contract away from the medical branch.

This arrangement is still a good fit in terms of controlling costs. Finding the money to pay for this contract would be cheaper than starting over again with new contractors. 

I don't necessarily believe TDCJ is prepared to take over prisoner healthcare, either from a financial nor a management perspective. Nor did I understand the failure of legislative leadership that allowed this festering problem to linger beyond last session, when it was already coming to a head. Taylor's right - this isn't an issue two state agencies can negotiate away.

In truth, after UTMB was basically told by Senate budget writers they shouldn't end the contract, I'm surprised the university feels they have the authority to back out. They're definitely thumbing their nose at Senate Finance Chairman Steve Ogden, perhaps because he's retiring from the Lege this term and won't be around to haunt them in 2013 for their defiance. (After all the Aggie senator did for UTMB after Hurricane Ike, it's particularly a slap in the face.)

Meanwhile, privatization isn't really an option, either, at current funding levels, even if that's the Governor's preferred option. Various companies (and UTMB, for that matter) want the hospital contract, which is more lucrative, but nobody really wants to contract for clinic-level care unless the Lege ponies up more money.

Bottom line: The Lege this year cut the prison health budget but failed to reduce incarceration levels, meaning demand for services wasn't commensurately cut. Texas already has among the lowest per-prisoner health expenses in the country and it's unlikely the budget can be lowered as long as we incarcerate nearly 160,000 people. The cost of overincarceration has finally caught up with Texas, and the expense is greater, even, than just TDCJ's budget.

This is a fish-or-cut-bait moment. Before next session, the state must decide how to deliver prison healthcare on a shortchanged budget. But when the Lege meets again in 2013, to avoid nine figures in additional expenditures at TDCJ, they must change policies to reduce the number of people incarcerated. Any other option will yield the same untenable result as the last budget, magnified several-fold.

"Old Behind Bars"

From a Human Rights Watch press release:

Aging men and women are the most rapidly growing group in US prisons, and prison officials are hard-pressed to provide them appropriate housing and medical care, Human Rights Watch said in a report released today. Because of their higher rates of illness and impairments, older prisoners incur medical costs that are three to nine times as high as those for younger prisoners.

The 104-page report, “Old Behind Bars: The Aging Prison Population in the United States,” includes new data Human Rights Watch developed from a variety of federal and state sources that document dramatic increases in the number of older US prisoners.

Human Rights Watch found that the number of sentenced state and federal prisoners age 65 or older grew at 94 times the rate of the overall prison population between 2007 and 2010. The number of sentenced prisoners age 55 or older grew at six times the rate of the overall prison population between 1995 and 2010.

“Prisons were never designed to be geriatric facilities,” said Jamie Fellner, senior adviser to the US Program at Human Rights Watch and author of the report. “Yet US corrections officials now operate old age homes behind bars.”

Long sentences mean that many current prisoners will not leave prison until they become extremely old, if at all. Human Rights Watch found that almost 1 in 10 state prisoners (9.6 percent) is serving a life sentence. An additional 11.2 percent have sentences longer than 20 years.

A Texas-based fact-bite from the report: "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]"

Prison health costs from UTMB deal obliterate claimed TDCJ budget savings

The Texas Department of Criminal Justice and the UT Medical Branch in Galveston last week agreed to a temporary extension of their contract for nine more months, with the state pledging an additional $45 million over that period, reported Mike Ward at the Austin Statesman (Dec. 2):

Senate Criminal Justice Committee Chairman John Whitmire, a Houston Democrat whose committee oversees prison operations, said the $45 million in additional funding will be advanced from the state's next budget, as promised by legislative budget leaders.

Whitmire said he will initiate hearings in January to "look at all alternatives for prison medical care: regional hospitals, UTMB, private companies — all options will be on the table." ...

UTMB "was prepared to walk and they still want out of everything except the care in Galveston," Whitmire said. "That wouldn't solve anything right now, except it might put the system into crisis."

Remarkable: Promising to deliver money in 2012 that won't be budgeted till 2013. Given this year's budget wrangling and the likelihood that the gap between budget and revenue will be even greater in 2013, one wonders if that's a promise legislative leaders can keep?

That $45 million entirely wipes out the paltry $5.5 million in "savings" the Lege claimed to find in TDCJ's budget. As Grits wrote yesterday, the only real way to reduce costs at TDCJ is to change policies to incarcerate fewer people. Slashing medical budgets without reducing the number of patients was always a non-starter, and Texas' spending on prison healthcare per capita is already among the lowest among states. If legislators want to cut prison health costs, they must reduce the number of prisoners, starting with the oldest and sickest among them. Any other approach - regional hospitals, privatization, etc. - amounts to a band aid that fails to address the core malady underlying TDCJ's budget infirmity.

Which devil do you want to dance with? Do conservatives prefer pot or national health care?

This cracks me up: Mother Jones reports that the central arguments which will be considered by the US Supreme Court in favor of "Obamacare" hinge on the high court's past judicial finagling to justify federal regulation of medical marijuana. Wrote Stephanie Menciner:

In both the DC Circuit and the 6th Circuit, the two appellate courts that have upheld the health care law, judges relied heavily on a 2005 Supreme Court ruling in Gonzalez v. Raich—a medical marijuana case. That case involved a California woman named Diane Monson who'd been growing marijuana in her backyard for medicinal reasons. (Monson was joined in the case by Angel Raich, a woman who'd also had her medicinal marijuana seized by federal agents.) The DEA swooped in one day and destroyed her plants, even though medical marijuana use in California is legal under state law. The high court found that the Commerce Clause gave Congress wide authority to regulate interstate commerce, even when that commerce takes place mostly in someone's backyard.

Monson had claimed the DEA's action was unconstitutional and a violation of the Commerce Clause because federal agents were moving to prohibit noncommercial, intrastate cultivation of a plant intended for personal consumption. The pot wasn't crossing state lines—it wasn't even being sold at all. That, the plaintiffs believed, made the weed beyond the reach of the feds.

The Supreme Court would have none of it. In a 6 to 3 decision, the court held that Congress could regulate backyard pot cultivation because it still constituted part of a very large, interstate market. It’s hard to see how the individual mandate doesn't square with that view of the law, given how enormous the national health care market is. Sixth Circuit Judge Jeffery Sutton, a George W. Bush nominee and a former clerk for Supreme Court Justice Antonin Scalia, wrote, "If Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption, it is difficult to say Congress may not regulate the 50 million Americans who self-finance their medical care."

How's that for unintended consequences? If the US Supreme Court upholds the "individual mandate" in Obamacare, the Tea Party types will mainly have overreach by Big Government drug warriors to blame. The prevailing narrative has it that states rights were radically scaled back first by the Civil War, then Reconstruction and later the destruction of Jim Crow, all of which is true. But less frequently discussed is how, after that, the remnants of states rights were all but annihilated over the ensuing four decades in the name of the drug war, which is why they now are nonexistent when the same mechanisms used to justify the drug war are trotted out to impose national healthcare.

If movement conservatives had to choose, I wonder, would they prefer to end Obamacare but allow Californians to grow pot in their back yards, or would the urgent necessity to regulate medical marijuana justify living with federalized healthcare and mandatory coverage? Which devil do you want to dance with? Like many constitutional liberties, states rights, or its abrogation, is a two-edged sword.

Banking on Obamacare for future prisoner hospital costs

At the Austin Statesman, Mike Ward has a story today following up on a subject first raised last month on Grits: The potential to have Texas prisoners' hospital costs covered by the federal Medicaid program beginning in 2014 under "Obamacare." His article opens:

State officials looking for ways to cut the skyrocketing costs of providing health care for Texas convicts are now looking to an unlikely source: the federal health care law signed last year by President Barack Obama.

Under a provision of the law, virtually all state prisoners could be eligible for Medicaid coverage of their hospital stays beginning in 2014 — and the federal government would pick up the tab, officials said Friday. ...

In the past year, hospital costs for the state's prison convicts tallied more than $112.5 million — a 15 percent jump over the previous year. Officials say the state could face a $100 million shortfall for prison health care in the next two years.

Under Medicaid, the feds pay 60% of costs in Texas, though experts estimate that could decline to 50% over the next 6-8 years. With the feds paying 60%, that would reduce the biennial cost of prisoner hospital care in the state budget by $135 million; at 50%, it would still shift $112.5 million to the feds, based on the current budget. That would be more than enough to make up for nine-figure cuts in prisoner healthcare enacted in the latest Texas budget, though the "Obamacare" provisions won't take effect until the next biennium.

I'm no attorney and can't say for sure, but it appears to me these provisions of Obamacare wouldn't be affected by federal litigation aimed at nixing the "individual mandate" for buying health insurance. Instead, it's a function of the portion of the law - almost certainly severable from the individual mandate - that expanded Medicaid coverage for low-income people, including younger men who make up most of the prison population and are almost by definition indigent while they're locked up. The 11th Circuit Court of Appeals that most prominently ruled against the individual mandate earlier this year did not claim that striking that provision would shut down the rest of the law. So barring something completely unforeseen - like an actual, Congressional repeal of the relevant provision in 2013 - Texas will soon have the option to sign up prisoners for Medicaid to pay for their hospital coverage. Given how much money they'd leave on the table if they chose not to do so, Grits doesn't see eschewing federal money for prisoner healthcare in 2014 as a realistic option.

RELATED: Obamacare provision a boon to budget writers on state prison health costs but complicates UTMB negotiation

Negotiations extended over TDCJ-UTMB prison health contract

The UT Board of Regents approved a 30-day extension of UTMB's contract with the Department of Criminal Justice to provide prison healthcare, but vowed to end the contract after December if the state can't come up with roughly $100 million more than was budgeted by the Lege this spring, reports Mike Ward at the Austin Statesman.

'Bubble' in expanding life sentences, LWOP driving TDCJ health costs for older inmates

Sentencing Law & Policy points out an AP story addressing a trend toward greater use of live and life without parole sentences which - somewhat like the housing bubble - Texas came to late in the party but has embraced for the time being until either the bubble bursts or state leaders finally do the math and/or come to their senses. Reports AP:

Nationally, nearly 10 percent of more than 2.3 million inmates were serving life sentences in 2008, including 41,095 people doing life without parole, up 22 percent in five years, according to The Sentencing Project, which advocates alternatives to prison.  The increase resulted from lawmakers "dramatically" expanding the types and repeat offenses that carry potential life terms, research analyst Ashley Nellis said.

"The theme is we're protecting society, then the question is: From what?" said Soffiyah Elijah, executive director of the Correctional Association of New York, a watchdog group. She said with the cost of keeping a state inmate $55,000 a year — a cost that grows as they age and their medical needs increase — a financial analysis shows that parole and probation are far cheaper punishments that can also satisfy the public need for retribution.

Meanwhile, data show new crimes by convicted felons steadily declining from their teens through their dotage. "Most criminal behavior is tied with impulse control. The section of the brain that controls impulse control is the last section of the brain that becomes fully developed," Elijah said. There's a large drop-off in criminal behavior and recidivism after 40 or 45, she said, a point seldom made in public discussion "because it's not convenient. It doesn't dovetail with the kind of tough-on-crime mentality that results in votes."

Patricia Gioia, whose daughter was murdered 26 years ago in California and who runs the Albany chapter of Parents of Murdered Children, said killers should spend their lives locked up, contemplating what they did, the person whose life they took and the lifelong suffering of families and friends.  "They should in effect be punished for this and should not enjoy the freedom that other people have to wander the world," she said.

A Stanford University study in September showed the recidivism rate was less than 1 percent among 860 murderers paroled in California since 1995.  Five returned to prison for new felonies, none for similar life-term crimes. By contrast, nearly 49 percent of all released California inmates were recommitted for new crimes.

"Not only are most violent crimes committed by people under 30, but even the criminality that continues after that declines drastically after age 40 and even more so after age 50," the study found.

Regular Grits readers have known for a long time that Texas faces a growing number of elderly and infirm prisoners in its prison system, many of them with extraordinarily high healthcare costs. These prisoner demographics are the main cost driver for prison healthcare during an era when the Legislature has slashed funding for that purpose.

In recent years, having made virtually everything a felony and pretty much maxxing out on possible sentence enhancements (hence all the absurd ones we get now like misrepresenting the size of a fish), the Texas Legislature has expanded use of mandatory-minimum sentences, introduced life-without-parole (which accounts for scores of new TDCJ admissions each year), and just this year for the first time began to expand use of life-without-parole to non-capital crimes. At last count, around 6% of Texas prisoners were serving life sentences, compared to about 20% in California. (Prisoners with life sentences, as well as sex offenders, are also ineligible for medical parole.)

Texas could avoid going California's route, i.e., paying through the nose to incarcerate prisoners who pose little threat to public safety so this or that elected official can boast they're "tuff on crime." But that's where the system is headed if the state continues down its current sentencing path. California's federal litigation over inadequate health-care funding shows what happens when this particular bubble bursts.

Obamacare provision a boon to budget writers on state prison health costs but complicates UTMB negotiations

Via Sentencing Law and Policy, I was fascinated to see an article from Stateline.org about how "Obamacare" may soon actually provide hospital coverage for state-level prisoners, which is an aspect of federal healthcare reform I was definitely unaware of. Reported Stateline.org:

The federal health law’s controversial Medicaid expansion is expected to add billions to states’ already overburdened Medicaid budgets. But it also offers a rarely discussed cost-cutting opportunity for state corrections agencies. Starting in 2014, virtually all state prison inmates could be eligible for Medicaid coverage of hospital stays—at the expense of the federal government.

In most states, Medicaid is not an option for prison inmates. But a little known federal rule allows coverage for Medicaid-eligible inmates who leave a prison and check into a private or community hospital. Technically, those who stay in the hospital for 24 hours or more are no longer considered prison inmates for the duration of their stay.

Here’s how it works:

Under the 1965 law that created Medicaid, anyone entering a state prison lost Medicaid eligibility. The same went for people who entered local jails, juvenile lock-ups and state mental institutions. The reasoning was that states and local governments had historically taken responsibility for inmate health care so the federal-state Medicaid plan was not needed.

But an exception to that general rule opened up in 1997 when the U.S. Department of Health and Human Services wrote to state Medicaid directors saying inmates who leave state or local facilities for treatment in local hospitals can get their bills paid by Medicaid, if they are otherwise eligible. In addition to the incarcerated, those on probation or parole or under house arrest were among those who could participate.

Still, most state prisoners do not qualify for Medicaid. That's because all but a few states limit Medicaid  to low-income juveniles, pregnant women, adults with disabilities and frail elders.  The majority of people in lock-ups are able-bodied adults who do not qualify, even on the outside. In 2014, however, when Medicaid is slated to cover some 16 million more Americans, anyone with an income below 133 percent of the federal poverty line will become eligible. Since most people have little or no income once they are incarcerated, virtually all of the nation’s 1.4 million state inmates would qualify for Medicaid.

As a bonus to state corrections agencies, most inmates would be considered new to Medicaid, making them eligible for 100 percent coverage by the federal government between 2014 and 2019. After that, states would be responsible for only 10 percent of their coverage. In addition, state health insurance exchanges—which are required to be functioning by 2014—would make it easier for corrections departments to sign inmates up for the program.

I find this report fascinating in the context of the ongoing negotiations between university health systems in Texas and the state prison system over provision of inmate care. Hospital care is considered the "plum" of Texas inmate healthcare, while the money losing part is the frontline clinics inside prison facilities. So UTMB has been pushing to keep the hospital care and dump in-prison healthcare, while the Department of Criminal Justice has threatened to farm out inmate healthcare to local hospitals if UTMB won't agree to continue operating the prison clinics.

This news, though - while welcome from the perspective of Texas taxpayers who will see state costs for inmate healthcare decline - seemingly throws a monkey wrench into everyone's plans. Presently, UTMB charges more than Medicaid rates for hospital care, so once inmates are covered by Medicaid, that part of the contract would cease to be the "plum" they consider it now. Similarly, local hospitals may be less likely to seek out contracts with the prison system if they must accept Medicaid rates, and it's a virtual certainty that private prison health contractors won't want the job at the low rates Medicaid pays.

At the same time, the state would be foolish NOT to sign inmates up for Medicaid, where the feds would pay 100% of hospital costs between 2014 and 2019 and 90% after that. Given recent cuts to Texas' prison healthcare budgets, the state has virtually no choice but to go that route. Right now, 100% of hospital costs come from the state budget.

I've no idea whether the parties to negotiations are aware of these changes to federal law, but signing up prisoners for Medicaid would alter the incentives for everyone involved, making hospital care less lucrative and attractive for UTMB, local hospitals, and private prison health providers alike. Indeed, finding providers willing to take Medicaid rates is already a challenge in the free world, so it remains to be seen how all this will play out.

In any event, this is good news in the medium term for Texas budget writers, even if it's an especially complicating factor for TDCJ's ability to contract for hospital care, with UTMB or anybody else, in the short run.

Can regional health providers replace UTMB prisoner healthcare?

If Mike Ward at the Austin Statesman ever retires or is laid off, there won't be a single professional journalist in the state closely monitoring the Texas Department of Criminal Justice. Most recently he reported on Saturday that:

In a surprise move, state prison officials revealed Friday that they are exploring a plan to run their convict health care program without any participation from the University of Texas Medical Branch at Galveston for the first time in 18 years.

Instead, officials said they are devising a network that would rely on regional hospitals across Texas to provide the care.

"We have very well-developed plans on what this new regional care network would look like and are moving forward to whatever transition may be necessary," said Brad Livingston, the prison system's executive director.

"We are working to finalize contracts containing the necessary provisions and prepare for a transition, if necessary, that ends UTMB's role in the delivery of offender health care."

Friday's development came after UTMB officials declared that talks to extend their managed care contract for prisons were at an impasse and proposed to stop providing care at prisons but continue operating the prison hospital in Galveston.

The hospital, and the specialty clinics associated with it, generally are considered the financial plums of prison health care, while the prison-based clinics are much less lucrative.

This news raises for Grits many related thoughts and unanswered questions:

First, this may be somewhat of a bluff, just like the suggestion that other university medical schools might be willing to do the job. UTMB and TDCJ are in the middle of negotiations, and UTMB thought they held all the cards, offering to bow out of the part of the program that's losing money but aiming to keep what Ward calls "the financial plums of prison healthcare." These are the portions that private providers hoped to cherrypick from the state earlier this year, though none were willing to take on the money-losing prison clinics in addition to the "plum" parts. So TDCJ appears to be calling UTMB's bluff, but it remains to be seen whether they could actually pull off the project by contracting with regional hospitals.

I also found it remarkable that "Prison officials said that in addition to the savings of cheaper rates they hope to negotiate with the regional hospitals, they could save transportation costs to Galveston. On an average day, about 2,000 convicts are being bused to Galveston for treatment." For many years we've been told by officials that prison healthcare in Texas is a "model" that's cheaper than in most other states primarily because of UTMB's "telemedicine" program, which supposedly cuts costs by letting providers in Galveston consult with patients over a videoconferencing system. But now, when UTMB threatens to pull out, there would be "savings" from "cheaper rates" and lower transportation costs from switching to regional providers? That may be true, but it makes one wonder if officials were misrepresenting the situation then, or now?

Third, I doubt regional hospitals are set up to handle inmates security-wise. The University Medical Center in Lubbock ended its contract with Texas Tech to handle prisoner care after an inmate took two nurses hostage and raped them. Most hospitals aren't prepared for the security measures required to replace UTMB services, and I suspect many won't be willing to enact them.

In addition, there's the issue of cost. The state auditor earlier this year found that "UTMB's prison health care division charges more for reimbursement for physician services, inpatient hospital services and outpatient services than it does for Medicare, Medicaid and at least one major private insurer's reimbursements." But will other hospitals be willing to take these patients at cheaper rates? I suspect their fees will be a major sticking point. It's unlikely prison healthcare will be cheaper under any alternative system.

Fifth, how does UTMB have the authority to end the contract when the Legislature basically ordered them to stay on during the legislative session? It strikes me as outright bizarre that one state agency is refusing to contract with another one when the Legislature explicitly told them to. What other agency gets to ignore legislative directives like that, and why does UTMB have so much autonomy that they can tell the state prison system to go take a hike? I don't get it. UTMB complains that they're being used as a bank to float interest-free loans to TDCJ, but in the big picture that's just the state loaning money to the state. When UTMB raised the issue of dropping out of the contract earlier this year, Senate Finance Chairman Steve Ogden dismissed their suggestion as "not helpful." One notices UTMB didn't follow through on their threat to end the contract until AFTER Ogden had secured a billion dollars in recovery money for them following Hurricane Ike and announced his retirement. I wish the Lege or the Governor had insisted on tying that recovery money to UTMB continuing to provide prisoner healthcare. Before they spent the recovery money, they had lots of leverage; now they appear to have little at all.

Sixth, this development re-raises the issue of privatization, and whether private prison health firms will be willing to perform Texas prison health services for the amount the Lege budgeted for UTMB and Texas Tech to do the job. Reading between the lines from news coverage (mostly from Ward) this spring, farming out the more lucrative parts of prison healthcare was really all private firms were interested in, but they only could do the job if prison health budgets stayed at last biennium's levels, not for nine-figures less. At current funding levels, I'm not sure who will be willing to do the job.

Finally, while most of the discussion presently seems to center around hospital care, the frontline work at the prison clinics still must get done, though nobody seems to be publicly suggesting a plan to accomplish that. Presumably TDCJ would resume direct employment of workers in prison clinics, but nobody's said so and I suspect an array of unresolved issues would accompany such a move. At a minimum, TDCJ isn't staffed up to provide supervision over prison health workers, and probably doesn't have the expertise on staff to do so. Further, I don't know if TDCJ employee benefit and retirement packages are comparable to UTMB's and suspect frontline employees may take a hit if that actually happens unless the Legislative Budget Board can somehow find more money. That's the part of the system that's actually bleeding red ink, but it appears from public discussions that the main focus of negotiations and TDCJ planning has been on provision of hospital care.

Maybe the threat of taking away the "plum" parts of prison healthcare will slow down UTMB's rush to get out of its contract with TDCJ, but it seems like they're dead set on leaving the deal one way or another. What a mess: An utterly predictable, and in fact predicted, management failure by the Lege and the governor's appointees on TDCJ's board. Thanks to the Statesman's Mike Ward, at least it's now a public failure instead of a secret, unacknowledged one.

RELATED: 'State funding doesn't cover costs of prison healthcare, officials say.'

'State funding doesn't cover prisoner health care costs, officials say'

No regular Grits reader will be surprised at the Austin Statesman story by Mike Ward today with the same title as the headline to this post revealing that UTMB is running more than $2 million per month over the amount budgeted for prison healthcare. Reports Ward:

In a new sign that Texas' state budget crisis is far from over, officials drafting a new contract to provide medical care for Texas' 153,000 imprisoned criminals acknowledged publicly Wednesday that the approximately $900 million allocated by the Legislature will not cover the cost.

As a result, top officials with the University of Texas — which provides medical care for roughly two-thirds of all state prisoners — threatened to stop providing care unless adequate funding can be guaranteed.

Such a move would create a new crisis in a system that was once hailed as a model for containing costs but in the past year has faced spiraling costs as private vendors lobbied — with the help of top aides to Gov. Rick Perry — to provide some services.

For Texas taxpayers, the funding disparity could mean they will have to pay more money to provide care for prison inmates during the next two years, even if private vendors do start providing the care. For convicts, it could mean further cuts in a system that already is drawing increasing complaints about inadequate care.

Dr. Kenneth Shine, executive vice chancellor for health services for the UT System, and Dr. David Callender, president of the University of Texas Medical Branch at Galveston that provides the prison health care, said in a Wednesday letter to Brad Livingston, head of the Texas Department of Criminal Justice, which operates the state's 111-prison system, that without adequate funding, "it is our intent to cease the delivery of correctional health services."

Readers of Grits, of course, knew months ago that the Lege hadn't appropriated enough money to cover prison health costs, and indeed:

House Corrections Committee Chairman Jerry Madden, R-Richardson, said he was not surprised by UTMB's decision.

"We cut $100 million from correctional health care spending, so we knew there was a good probability there would not be enough money to cover everything," he said. "I'm not aware of an extra $100 million laying around anywhere, but we definitely need to find a way to resolve this so it doesn't become a problem in court.

"We have these people incarcerated. We have to provide them medical care."

I guess that new policy (pdf) charging inmates a $100 annual fee for healthcare isn't turning out to be as lucrative as hoped. (Grits suspects the policy will actually increase demand for prisoner healthcare.)

Madden told Ward, and I couldn't agree more, that the best way to reduce inmate healthcare costs would be to "downsize Texas' prison population." Madden is focused on release of immigrant offenders who're eligible for deportation, but it's also worth mentioning that according to a recent news report, "More than 50 percent of that cost is spent on care for inmates 55 and older." The same story mentioned that "offenders 55 and older averaged $4,853 in yearly medical costs, while the average for those below that age was $795." So to really get the most bang for the buck, paroling older offenders would generate the most savings in healthcare costs.

Older offenders also have much lower recidivism rates than their younger inmate counterparts. According to the Legislative Budget Boards's latest recidivism report (pdf, p. 40), three-year reincarceration rates for released prisoners broke out by age as follows:

25-29: 26.9%
30-34: 24.6%
35-39: 24.6%
40-44: 24.2%
45+: 17.6%

So for my money, the best budgetary and public-safety bang for the buck comes from releasing older offenders who also cost the state the most in healthcare services.

Do I think the parole board will do that? Not really. But that's what would make the most sense.

Bizarre commentary from parole board chief on medical parole

Photo by Jaime Carrero, Tyler Morning Telegraph

In the Tyler Morning Telegraph today there's a pretty-much workaday story about healthcare costs in the Texas Department of Criminal Justice that covers familiar ground for Grits readers. State Sen. John Whitmire is quoted decrying how much it costs to keep elderly inmates locked up and provide them constitutional levels of healthcare. And in the traditional "quote both sides" fashion of modern journalism (as though there are only two), the senator's comments are paired with Rusk County DA Michael Jimerson who told the paper, "What Whitmire should do is go to Washington and do something to change the laws so inmates don't get Cadillac health care." Jimerson "said costs shouldn't matter because the offenders are paying the price for their crimes." Same ol', same old. Money's always no object when you're spending the taxpayers' dime.

The data in the story on high geriatric health costs won't surprise Grits readers any more than the back-and-forth debate between prosecutors and budget-writers: "Records from the 2009-10 Correctional Managed Health Care report to the Texas Legislation showed offenders 55 and older averaged $4,853 in yearly medical costs, while the average for those below that age was $795." These are facts and debates most Grits readers have heard before and most of the data was accurate and well-presented, if not exactly "news." (More like "olds" - these are longstanding controversies.)

What caught my eye, though, were bizarre representations from parole board chair Rissie Owens that simply can't be justified:

Rissie Owens, presiding officer of Texas Board of Pardons and Paroles, said there long has been a misconception that offenders are entering the Texas prison system young and staying until they are old. In reality, many enter prison late in life to begin serving their sentences for crimes they committed late in life, Ms. Owens said. 

"Forty-five percent of all prison and state jail inmates received have been 55 and older at the time they entered prison to serve their sentences," she said. "It also appears that these older inmates are serving sentences for violent offenses as almost 6 percent of those 55 and older have sentences for crimes ranging from homicide, kidnapping, sexual assault, sexual assault of a child, robbery and assault/terroristic threats." 

Ms. Owens said numerous factors are reviewed during parole decisions. 

"Age is one factor, but we do not just focus on the age of each offender," she said. "The numbers indicate that there have been more offenders received at TDCJ in the age group 55 to 60 than any other age group at the time of prison entry."

I don't know why Mrs. Owens would say such things or why any reporter would publish the quote when the error is so easily debunked, but this representation is about as far from accurate as you can get.  While I can't find an apples to-apples number for received inmates 55 or over, according to the agency's annual statistical report (pdf, p. 30), in FY 2010, 6,854 inmates 50 years old or more entered TDCJ, out of 72,315 who entered Texas prisons or state jails that year. That's 9.4%, not 45%, and really the comparable number is less since my stat includes inmates received age 50 and up. Just 1,010 inmates age 60 and up entered TDCJ that year, according to the annual statistical report. So about one out of every 72 new inmates is 60 years old or older.

One might think the reporters just misinterpreted Owens' use of data or the numbers were misquoted, but her other comments make clear she believes - or wants the public to believe - that older offenders make up a large proportion of new offenders. It's just a flat-out falsehood that "The numbers indicate that there have been more offenders received at TDCJ in the age group 55 to 60 than any other age group at the time of prison entry." That's not true. Here are the number of new receives for TDCJ in FY 2010 by age range:

14-16: 28
17: 364
18-19: 3,657
20-29: 27,654
30-39: 19,324
40-49: 14,434
50-59: 5,844
60 and older: 1,010

So the suggestion that "more offenders [are] received at TDCJ in the age group 55 to 60 than any other age group" beggars belief. It's just a fabrication.

Similarly odd to me is the comment that "It also appears that these older inmates are serving sentences for violent offenses as almost 6 percent of those 55 and older have sentences for crimes ranging from homicide, kidnapping, sexual assault, sexual assault of a child, robbery and assault/terroristic threats." That explains denying medical parole for those 6%, but that also means, if accurate, that the overwhelming majority (94%) of inmates older than 55 did not commit those types of awful crimes. Should we punish them extra for the crimes of the 6%? What a strange assertion!

According to the above-cited statistical report (p. 31), 20.5% of total "new receives" at TDCJ in 2010 committed violent offenses to get there, so if the figure for violent crimes among older offenders is 6%, that's substantially lower, not some grave, extra cause for concern. It's possible to manage those 6% without applying the same release criteria to the other 94%.

All the data and analyses attributed to Mrs. Owens in this story were either a) false or b) did not support her interpretation. But it just gets quoted and repeated and for the most part, reporters don't call officials on it when they make such screwball comments.

October 6 will be Grits for Breakfast's 7th blogiversary - the first post on this blog was seven years ago tomorrow. The reason I started Grits was precisely to counter - on criminal justice topics, anyway - this brand of modern journalism where reporters don't resolve factual disputes in their stories but merely "quote both sides" without vetting statements from public officials to make sure they're telling the truth. The majority of posts on this blog have the same structure: Quote mainstream media reports then correct factual errors from self-interested or self-justifying pols who're blowing smoke up some poor reporter's ass. Though many days I find that task somewhat boring and repetitive, stories like this one show the function is just as necessary today as it was when the blog began. It's one thing to "quote both sides." It's quite another to quote lies and truth and then portray them as equivalents.

Attorney Andy Nolen: Permissible to breach confidentiality without penalty

via FlickrThere are situations where it is permissible to breach confidentiality without penalty. Such situations include but are not limited to: the professional is aware of or suspects the individual is acting illegally or the professional is aware or suspects the individual is harming others. "Others" may include people with whom the individual has a relationship, members of the general public or professionals with whom the individual has a service-provider/service-user relationship. Confidentiality may be breached when the professional is aware or suspects the individual has harmed himself or others, or may do so in the future. Confidentiality may also be breached if the professional is aware or suspects that a minor is being exploited or abused by others. Cases in which the professional is aware or suspects a competent adult is being exploited or abused by others constitutes an impermissible breach of confidentiality.

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Attorney Andy Nolen: Children's Code Mandatory Reporting

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CHILDREN'S CODE


The Children’s Code addresses issues impacting the youth in OJJ’s care including: Mandatory Reporting, Safe Environments, Confidentiality and Expungement of Case Records.


MANDATORY REPORTING


Youth in residential and secure care facilities have the same rights. It is the state's duty to act as a parent to the youth placed in custody. This is known as "Parens Patriae". According to Children’s Code Art. 801, "In those instances when [a child] is removed from the control of his parents, the court shall secure for him care as nearly as possible equivalent to that which his parents should have given him." According to State in the Interest of S.D., "the purpose of incarcerating juveniles…is treatment and rehabilitation, due process requires that the conditions and programs…must be reasonably related to that purpose.”

Harris County  Criminal Defense Attorney Andy Nolen has over 19 years  experience representing persons accused of committing criminal violations of State and Federal law.

 Houston, Texas Criminal Attorney  Andy Nolen treats  every person they represent as if they were a friend and neighbor.   When you call, likely Andy Nolen will answer your call himself.  You will be dealing with Attorneys, not secretaries, assistants, or answering machines.

 If we can be of any assistance, or you just want to talk about your situation, please call Texas Criminal Defense Attorney  Andy Nolen at 713-697-4373.

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Attorney Andy Nolen: PERSONAL BREATH TESTER MAY HELP JUVENILES

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Some friends and i went out to eat a local restaurant, and we all had few drinks with dinner. As we left the restaurant, i remembered i had a impertinent and personal breathalyzer in my glove compartment that i had not so long ago purchased. I ran a check on myself using my impertinent and personal alcohol detector and realized i was at a 0. 10% blood alcohol content (bac). Not wanting to take any chances, i called for a cab, and on the ride home we passed through a dui checkpoint in the same route i would have driven home. My heart skipped a beat and my stomach dropped as i realized that little impertinent and personal breathalyzer saved me from months of embarrassment, irritation, and a considerable quantity of money.
Like any substance, alcohol reacts differently in the body for every person. This is the reason why a heap of people are considered “light-weights” while others appear to be able to drink the entire bar and come back for more. Using a impertinent and personal breathalyzer, you can test yourself and others to see for your own behalf how bac can vary as stated by every person. Believe it or not, impertinent and personal breathalyzers make great party qualities and gifts too, specially during the holiday season. You can always liven up a party by passing around the alcohol detector, and being the host this is a nifty way to recognise whether or not your guests are okay to drive.
The key to using a impertinent and personal alcohol detector effectively is that you should wait at least twenty minutes after your last drink to get an comprehensible and precise reading. Whether or not you don’t abide by this sane and simple rule, you will experience very inconsistent results both underestimating and overstating your present bac. So whether or not you’ve just completed a drink and nearly without delay gather a breathalyzer sample which reads your bac is beneath the legal limit, i can guarantee this is unquestionably not a unfeigned representation of your present bac. Too soon after drinking and the alcohol particles can not be present in your lungs causing you to give a lower than unfeigned share. Another possibleness is that there can be alcohol hushed and still present on your tongue which sends the reading into the stratosphere when you’ve only had one drink. Moral of the story, wait twenty minutes then gather a breathalyzer sample, that way you wont be putting yourself and others in sedate and serious jeopardy.

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