Brown v. County Commissioners

RODOWSKY, Judge, dissenting. I respectfully dissent because I agree with the conclusion reached by the Attorney General of Maryland in 75 Op. Att’y Gen. 1101 (1990) [Opinion No. 90-034 (July 5, 1990) ]. There the Attorney General ruled that federal Medicaid benefits are not payable to detainees, whether pretrial, during trial, post-verdict, or post-judgment of conviction.

Because there is no longer even partial federal reimbursement for inmate medical care, federal reimbursement cannot be a condition precedent to a detainee’s statutory obligation to make restitution. It may be helpful to the reader if the pieces of this jigsaw puzzle are arranged in chronological order. 1825. Chapter 41 of the Acts of 1825 required a sheriff to provide “food and other articles for the comfort of sick persons confined in the jails of this state, as the physician appointed to attend on prisoners in jail shall deem necessary ... [and t]hat the sheriffs aforesaid shall be entitled to charge their respective counties with the sum or sums of money they may expend under the provisions of this act....” 1825 Md. Laws at 27. This is now Maryland Code (1957, 1991 Repl.Vol., 1994 Cum.Supp.), Art. 87, § 46(b). 1965.

The Medicaid program was enacted by Congress as Title XIX of the Social Security Act, now 42 U.S.C.A. §§ 1396 et seq. (1992 & 1995 Supp.). The legislation provided for payment of part or all of the costs of certain care and services, except “any such payments with respect to care or services for any individual who is an inmate of a public institution (except as a patient in a medical institution).” 42 U.S.C. ³¹⁴ § 1396d(a)(A). “[I]nmate of a public institution” was not a statutorily defined term. Regulations, however, define the quoted phrase to mean “a person who is living in a public institution.

An individual is not considered an inmate if— “(b) He is in a public institution for a temporary period pending other arrangements appropriate to his needs.” 42 C.F.R. § 435.1009 . Further, prior to May 3, 1985, 42 C.F.R. § 435.1008 provided that federal financial participation (FFP) “was available for noninstitutional services furnished during the month in which the individual became an inmate or patient and the last month of institutionalization.... ” 50 Fed.Reg. 13196, 13196 (Apr. 3, 1985). 1980. The General Assembly, by Chapter 324 by the Acts of 1980, amended former Art. 43, Title, “Health,” by adding § 42-0. The then new section read: “If an individual who is an inmate of a public institution is eligible for federally funded medicaid benefits, the Department of Health and Mental Hygiene, Medical Assistance Administration, shall, in accordance with applicable program rules, pay the custodial authority for medical care furnished the individual in the month he or she became an inmate of a public institution; in the case of a State authority responsible for an inmate, that authority shall reimburse the Department of Health and Mental Hygiene for the nonfederal cost of medical care; and in the case of a local authority responsible for an inmate, the local authority shall reimburse the Department of Health and Mental Hygiene for the nonfederal cost of medical care. ‘Public institution’ and ‘inmate of a public institution’ are as defined in Title 42, § 435.1009 of the Code of Federal Regulations, 1978 Edition, as amended.” Md.Code (1957, 1980 Repl.Vol., 1981 Cum.Supp.), Art. 43, § 42-0. ³¹⁵ 1982.

By Chapter 21 of the Acts of 1982 the General Assembly enacted the Health General Article as part of the Code revision project. Former Art. 43, § 42-0 was codified as § 15-113 of the Health General Article. The revised section continues to date to limit payment-by the Department of Health and Mental Hygiene (DHMH) to services for those inmates of a public institution who are “eligible for federally funded Medicaid benefits” and then only for “any medical care that is provided to the inmate during the month when the individual became an inmate.” Md.Code (1982, 1994 Repl.Vol.), § 15-113(b)(1) of the Health General Article (HG). 1985. The Health Care Financing Administration of the United States Department of Health and Human Services amended 42 C.F.R. § 435.1008 (a) expressly to provide that “FFP is not available in expenditures for services provided to — (1) [individuals who are inmates of public institutions as defined in § 435.1009.” 50 Fed.Reg. at 13199.

The earlier form of the regulation, allowing FFP for the first and last months of confinement of inmates of public institutions, had been based “on a judgment that such an arrangement would be more administratively convenient for States.” Id. at 13196. The federal agency decided to change its regulation to “ensure that Medicaid funds are not used to finance care for institutionalized individuals who have traditionally been the responsibility of State and local governments.” Id. 1987. The General Assembly, by Chapter 628 of the Acts of 1987, amended Art. 87, “Sheriffs,” § 46 to provide that in four counties, including Carroll, “sick ... prisoners shall be responsible for the payment of all medical care,” and they are to furnish the sheriff certain information concerning “any health insurance, group health plan, or prepaid medical care coverage....” Md.Code (1957, 1985 Repl.Vol., 1987 Cum.Supp.), Art. 87, § 46(b)(1). 1988. The General Assembly, by Chapter 591 of the Acts of 1988, amended Art. 87, § 46 to make of statewide application the obligation of a sick prisoner in a jail to reimburse “the county or Baltimore City for the payment of all medical ³¹⁶ care.... ” Md.Code (1957, 1985 Repl.Vol., 1988 Cum.Supp.), Art. 87, § 46(c).

The General Assembly also added to the insurance information that the prisoner is to furnish information concerning “[t]he eligibility for benefits under the Maryland Medical Assistance Program to which the prisoner is entitled.” Id. § 46(c)(2). 1990. The City Solicitor of Baltimore City requested an opinion from the Attorney General of Maryland “on whether the Maryland Medical Assistance Program may lawfully exclude prisoners from its coverage.” 75 Op. Att’y Gen. at 1101. That program included two parts, one of which was Medicaid. 1 The Attorney General opined that jail detainees were ineligible for Medicaid payments because they were inmates of a public institution who did not fall within the second exception in 42 C.F.R. § 435.1009 .

This was because “[t]he second exception, for those temporarily awaiting appropriate arrangements, also does not describe prisoners, even those incarcerated while awaiting trial. Instead, it appears directed at persons who would not have been housed in a public institution had a more appropriate placement been available earlier. This description does not fit persons imprisoned in detention centers while awaiting trial. Under State law, there is nothing ‘inappropriate’ in detaining those for whom no bail has been set or who cannot meet bail.” 75 Op.

Att’y Gen. at 1103. 1991. The General Assembly, by Chapter 59 of the Acts of 1991, again amended Art. 87, § 46. This amendment was incidental to a principal purpose of Chapter 59 of effecting a State takeover of the Baltimore City Jail. Chapter 59 created the Division of Pretrial Detention and Services in the Department of Public Safety and Correctional Services.

The Divi ³¹⁷ sion is headed by a Commissioner of Pretrial Detention and Services, and the Division includes the Baltimore City Detention Center. See Md.Code (1957, 1990 Repl.Vol., 1991 Cum.Supp.), Art. 41, §§ 4-1401 through 4-1414. As part of the restructuring, Art. 87, § 46(c) was amended to read as follows (capitals identify new matter in relation to then existing law and brackets contain matter deleted from then existing law): “(c) Sick, injured, or disabled prisoners INCLUDING THOSE COMMITTED TO THE COMMISSIONER OF PRE-TRIAL DETENTION SERVICES shall be responsible for reimbursing the county [or Baltimore City] OR THE STATE, AS APPROPRIATE for the payment of all medical care, and shall furnish the sheriff with the following information: “(2) The eligibility for benefits under the Maryland Medical Assistance Program to which the prisoner is entitled....” 1991 Md. Laws at 1503. 1994. By Chapter 586 of the Acts of 1994 the General Assembly required “the governing body of each county and, in the case of Baltimore City, the Department of Public Safety and Correctional Services, [to] set a reasonable fee not to exceed $4 for each visit by an inmate to an institutional medical unit or noninstitutional physician, dentist, or optometrist.” Md.Code (1957, 1991 Repl.Vol., 1994 Cum.Supp.), Art. 87, § 46(d)(2)(i).

The General Assembly has expressly stated that this subsection is in addition to the reimbursement obligation for “payment of all medical care” imposed by subsection (c). Id. § 46(d)(2)(i). The surcharge may be deducted from the detainee’s account at the jail. Id. § 46(d)(2)(h).

Under subsection (d)(1) the surcharge essentially applies only to inmate initiated visits for medical attention. The foregoing chronological review supports the Attorney General’s opinion of 1990. Interpreting “inmate of a public institution” in the Social