Recommendations of the Texas Comptroller

Develop More Effective Methods of Dealing with Special Needs
Inmates

Summary

Texas’ elderly prison population (those aged 60 and older) is expected to rise to more than 10,000 by 2008. The population of inmates with significant medical problems is rising as well. Both groups have higher-than-average medical costs. The Legislature has created a special needs parole program to release certain of these inmates to alternative facilities where federal funds can be used to defray some of their expenses. Texas would realize significant savings if more offenders are approved for release to such facilities.

Background

The prison population in Texas and across the country is aging. In 1999, 2,450 inmates aged 60 or older were kept in Texas prisons, about 1.8 percent of the total prison population.[1] This figure is up from 1,000 in 1994.[2] In the last five years, the elderly inmate population rose faster than any other inmate age group and is expected to increase by 121 percent between 1998 and 2008.[3]

Many factors contribute to the growth of an aging prison population. Mandatory minimum sentencing and “three-strikes” policies are responsible for much of the increase throughout the United States.[4] In Texas, rapid growth in the elderly prison population is due in part to the revision of the Texas Penal Code, a new state jail system for lesser offenses, and dramatically increased sentences.[5]

The average health care cost of elderly inmates was $14.80 a day in fiscal 1997, about three times the cost for younger offenders.[6] The Correctional Managed Health Care Advisory Committee reported annual health care costs for inmates aged 55 and older were $5,243 per inmate in fiscal 1997, compared to $1,909 for other offenders. The main reason for these higher costs is the fact that elderly inmates require more bed care and intensive medical supervision. Health care costs also are higher for inmates with significant medical problems such as Hepatitis C and AIDS. HIV-positive inmates and those who are on dialysis need special medical services and facilities not found in most prisons, as do inmates with tuberculosis, serious coronary disease, cancer, or physical handicaps (Exhibit 1).[7]

Exhibit 1

Texas Inmates with Significant Medical Conditions, Fiscal 1999

* The number of inmates with cancer is not available.

Sources: Texas Department of Criminal Justice and Correctional Managed

Health Care Advisory Committee.

Geriatric Population

No national consensus has emerged concerning how to define the “elderly” inmate. The Texas Criminal Justice Policy Council (CJPC) defines elderly inmates as those 60 years old or over. In general, CJPC has concluded that a 60-year-old person in prison is at least equivalent to a 65-year-old person in the general population; this early aging is the result of inadequate preventive care and the tendency of this population to have histories of high-risk behavior.[8] Many elderly inmates have endured years of poor nutrition, smoking, and alcohol and drug abuse that ultimately result in chronic diseases such as heart disease, cancer, and strokes.

Furthermore, these chronic medical problems can worsen rapidly due to prison living conditions. Generally, prisons are designed for young, physically-active inmates. Buildings and services are scattered over large areas so that inmates must walk to get meals, medical services and other activities. Other barriers for elderly inmates include steps, crowded living conditions and limited climate control. The Texas Department of Criminal Justice’s (TDCJ’s) prison units, for instance, are not air-conditioned, except for a 60-bed geriatric ward in Huntsville’s Estelle Unit and prison hospitals and psychiatric units.[9]

Many more Texas prisons will need to be remodeled to care for elderly and sick inmates. One recent CJPC report stated that incarceration and health care costs for more than 3,000 inmates aged 55 and above would be close to $137 million in the 2000-01 biennium. Inmates are not eligible for Medicare or Medicaid, and few have private insurance, so the state must pay for the full cost of their health care, including special needs such as kidney dialysis, which costs $122 per treatment.[10]

As of July 2000, TDCJ held 1,159 inmates aged 65 or older. About 200 of these inmates had chronic medical conditions that require around-the-clock skilled nursing care.[11]

Inmates With Medical Problems

Offenders diagnosed as HIV-positive have the most dramatic impact on health care costs. Multi-drug therapy for more than 2,500 offenders costs the state about $1 million a month—about 40 percent of TDCJ’s total medical costs for a year.[12] This figure, moreover, does not include inpatient hospital costs or practitioner fees.

Hepatitis C is a disease that manifests itself over a 10-year to 15-year period and can cause liver failure. A growing number of offenders with Hepatitis C will require medical treatment over the next several years. In fiscal 1999, 28.8 percent of incoming inmates tested positive for Hepatitis C. Of approximately 40,000 offenders with Hepatitis C now at TDCJ, only about 200 received interferon therapy in fiscal 1999, at a total cost of about $245,000. The Correctional Managed Health Care Advisory Committee estimates that the cost of care for offenders with Hepatitis C will approach $500,000 annually in 2000.[13]

Special Needs Parole

The 1991 Legislature established a special needs parole program to help avoid the high cost of medical care for older inmates and those with significant medical problems. The Texas Council on Offenders with Mental Impairments (TCOMI) administers this program; eligible offenders include elderly, terminally ill, mentally ill, mentally retarded, and physically handicapped inmates. Violent offenders and those who used a weapon in their offense (“3G” inmates) are not eligible. Presently, the Board of Pardons and Paroles cannot release 3G offenders for special needs parole even if they are physically incapacitated and near death.[14]

In fiscal 1998, 3,213 inmates were potentially eligible for release on special needs parole. TCOMI screened 922 cases and presented 115 to the parole panel. Ultimately, 51 were approved for release, and only one was elderly.[15] No mentally ill or mentally retarded inmates were approved for special needs parole. Presently, Texas has no alternative facilities outside of TDCJ for mentally ill and mentally retarded inmates.[16]

In fiscal 1998, 95 offenders died during the special needs parole review process.[17] The majority of inmates now being considered for special needs parole are terminally ill and within six months of dying. Current guidelines specify that two doctors must make an independent assessment and certify that the inmate is terminally ill.[18]

Alternative Care

Inmates who qualify for special needs parole could be released to alternative care facilities where federal funds could be used to defray most of their costs, such as nursing homes, veteran’s hospitals, hospice programs, or to family members who can provide housing. Many paroled inmates could qualify for federal entitlement benefits including food stamps, Social Security Income, Social Security Disability Income, welfare, Veterans Administration benefits, Medicaid, and Medicare.

HIV-positive offenders may qualify for special needs parole because of their disease. However, if they remain on a strict medication regimen, they usually can function normally, and may be a public safety threat. Candidates could be reviewed on a case-by-case basis to determine their danger to society.

Offenders who have developed cirrhosis of the liver from Hepatitis C can require long-term nursing-home care and thus become eligible for special needs parole.

Another group that could be eligible are the physically handicapped, mostly paraplegics and multiple-limb amputees who are confined to wheelchairs. About 170 offenders in TDCJ belong to this group, most of them confined to TDCJ’s Jester 3 unit in Sugarland.

Elderly, nonviolent inmates who have significant medical problems and have served half of their sentences are good candidates for special needs parole. Proponents for the early release of such offenders state that they are a minimal threat to society and require expensive medical care and increased attention from correctional institutions.

A 1999 Legislative Budget Board (LBB) report stated that increased use of special needs parole could produce significant savings in health care costs. The LBB estimated that incarceration and health care costs for inmates over the age of 55 with significant medical problems and half their sentences served would total $11.5 million in the 2000-01 biennium.[19]

Practices in Other States

Compassionate release of various kinds is available in 22 states.[20] It is used primarily for terminally ill inmates who meet strict guidelines. New York’s Medical Parole Law, passed in 1992, is typical. Between 1992 and December 1998, 215 inmates were paroled. More than 2,800 inmates died in New York prisons from 1990 to 1998.[21]

Many compassionate release programs define terminal illness as a condition caused by an illness or disease that can be expected to produce death within six months. This is similar to federal Social Security regulations describing eligibility for Medicare benefits for hospice care.[22]

Few states grant special parole to elderly and non-terminally ill inmates. Many states have established centralized geriatric units for elderly inmates to reduce their medical costs. Alabama, North Carolina, and Pennsylvania have opened such units, many of which are converted state mental hospitals.

Twenty-four states provide hospice care for terminally ill inmates, according to a 1997 survey by the National Institute of Corrections. Texas has a 21-bed hospice for men at its Michael Unit in Palestine, and a four-bed hospice for women at the Southern Region Medical facility in Texas City. The Stiles Unit in Beaumont is a hospice for HIV-positive inmates. Because these are in-prison hospice care units, inmates do not qualify for federal funds for their health care.

Connecticut, North Dakota, and Washington place inmates in publicly-funded hospice care outside the prison system. Hawaii, Nebraska, North Dakota, and Vermont offer privately-funded hospice care outside the prison system. Other states offer hospice care if funded by the inmate, the inmate’s family or an insurance policy held by the inmate.[23]

Alternative Settings in Texas

At present, Restful Acres Care Center in Karnes County is Texas’ only highly secure nursing home for elderly offenders released on special needs parole. It was selected through a request for proposals process; the contract is administered by the Texas Department of Human Services (DHS). At this writing, 46 of 60 Medicaid-funded beds available in the center are being used by paroled offenders. A parole officer conducts weekly meetings with special needs offenders at Restful Acres.

The excess capacity at Restful Acres is not due to any lack of eligible offenders, but to the low rate of special needs paroles approved by the Board of Pardons and Paroles (Exhibit 2). In addition, some eligible offenders have turned down special needs parole because Karnes County is a rural area, and many offenders come from the state’s large urban areas. If they were moved to Karnes County, their families might be unable to visit them. Moreover, Karnes County has no sophisticated medical facilities for ill inmates.

Exhibit 2

Offenders Referred to Special Needs Parole, Fiscal 1995-1999

Sources: Criminal Justice Policy Council and Texas Council on Offenders With Mental Impairments.

Some families object to housing regular residents alongside prison parolees in the same facility. One solution would be to convert a nursing home to an inmate-only facility. A secure facility also is needed for HIV-positive inmates who are still ambulatory. Electronic monitoring devices could be used for this inmate population without jeopardizing the facility’s eligibility for Medicaid or Medicare funding.[24]

Underused rural hospitals also could become alternative facilities for inmates released on special needs parole. Texas has not yet adequately explored alternatives to incarceration for elderly inmates, such as assisted living, sheltered work environments, and related programs. The Senate Committee on Criminal Justice is studying alternatives to incarceration as part of its Interim Committee charge.

Recommendations

Fiscal Impact

The current average daily cost for a special needs inmate is $53.50. Texas would realize savings by releasing more offenders on special needs parole. The majority of special needs offenders would be released to alternative care in nursing-home facilities. The cost of nursing home care averages $86 per day and would be covered under Medicaid. In 2001, Medicaid coverage for this population would be provided by the federal government (60.6 percent) and the state (39.4 percent). The net savings to the state would be $19.71 per day or $7,194 per year for each special needs offender released to a long-term nursing home facility.

The overall savings to the state would depend upon the number of special needs offenders released. More than 3,000 offenders met the qualifications to receive special needs paroles in fiscal 1998. Because of the need for nursing home facilities to house these offenders, and because public safety is always a top priority, the number of offenders to be considered for release in this calculation is very conservative.

For the 2002-03 biennium, the estimate assumes that 150 additional inmates would be released under the special needs parole program. For 2002, the estimated savings are lower because of start-up costs. Because the elderly inmate population continues to grow faster than the regular inmate population, the number of special needs parole inmates was projected to increase by 50 each year beginning in 2004.

To obtain these savings, TDCJ’s appropriations should be reduced by the amount of the estimated savings to the General Revenue Fund reflected below. This fiscal impact does not include savings resulting from avoided costs for building new prisons for the growing prison population. The prison population has risen from more than 41,000 beds in 1989 to 151,100 beds in August 2000. By August 2001, the Criminal Justice Policy Council estimates that more than 3,500 additional beds will be needed to meet demand.[25]

[1] Texas Department of Criminal Justice, Statistical Report, Fiscal Year 1999 (Huntsville, Texas, February 2000), p. 10.

[2] Texas Department of Criminal Justice, Statistical Report, Fiscal Year 1994 (Huntsville, Texas), p. 17.

[3] Criminal Justice Policy Council, Elderly Offenders in Texas Prisons, Eric Benson, Kim Harrison, Curt Lansing, Pablo Martinez, and Michelle Munson (Austin, Texas, January 1999), p. i

[4] U.S. Department of Justice, National Institute of Corrections, Prison Health Care Survey, Deborah Lamb-Mechanick and Julianne Nelson (Washington, D.C., 1999), p. 12.

[5] Texas Senate, Senate Committee on Criminal Justice, Interim Report, 76^th Legislature (Austin, Texas, October 1998), p. 1.

[6] Criminal Justice Policy Council, “Elderly Offenders in Texas Prisons,” (Austin, Texas, January 1999), p. i.

[7] Telephone interview with Allen Sapp, assistant director, Correctional Managed Health Care Advisory Committee, Huntsville, Texas, November 3, 1999.

[8] Criminal Justice Policy Council, Elderly Offenders in Texas Prisons, p. 1.

[9] Telephone interview with Dee Kifowit, director, Texas Council on Offenders with Mental Impairments, Austin, Texas, August 21, 2000.

[10] Legislative Budget Board, Staff Performance Report to the 76^th Legislature: Incarceration and Treatment of Elderly Inmates (Austin, Texas, January 1999), p. 68.

[11] Telephone interview with Alan Sapp, assistant director, Correctional Managed Health Care Advisory Committee, Huntsville, Texas, April 25, 2000.

[12] Telephone interview with Dr. Michael Kelley, director of Preventive Medicine, Texas Department of Criminal Justice, Huntsville, Texas, May 9, 2000.

[13 ] Telephone interview with Alan Sapp, assistant director, Correctional Managed Health Care Advisory Committee, Huntsville, Texas, April 25, 2000.

[14 ] Testimony of Gerald Garrett, chairman, Texas Board of Pardons and Paroles, before the House Corrections Committee, Austin, Texas, May 16, 2000.

[15] Legislative Budget Board, Staff Performance Report to the 76^th Legislature: Incarceration and Treatment of Elderly Inmates,” p. 72.

[16] Interview with Dee Kifowit, director, Texas Council on Offenders with Mental Impairments, Austin, Texas, December 6, 1999.

[17] Criminal Justice Policy Council, Overview of Special Needs Parole Policy, p. 9; Legislative Budget Board, Incarceration and Treatment of Elderly Inmates (Austin, Texas, January 1999), p. 72.

[18] Telephone interview with Allen Sapp, April 25, 2000.

[19] Legislative Budget Board, Staff Performance Report to the 76th Legislature: Incarceration and Treatment of Elderly Inmates, p. 75.

[20] US Department of Justice, National Institute of Corrections, Prison Medical Care: Special Needs Populations and Cost Control (Longmont, Colorado, September 1997), p. 2.

[21] John A. Beck, “Compassionate Release from New York State Prisons: Why Are So Few Getting Out?” Journal of Law, Medicine & Ethics, 27 (1999), p. 216.

[22] John A. Beck, “Compassionate Release from New York State Prisons: Why Are So Few Getting Out?”

[23 ] U.S. Department of Justice, National Institute of Corrections, Prison Medical Care: Special Needs Populations and Cost Control, p. 5.

[24] Interview with Ray Allen, Texas state representative, Austin, Texas, March 27, 2000.

[25] Criminal Justice Policy Council, Adult Correctional Population Projection for Fiscal Year 2000 – 2005 and Long-Term Planning Options (Austin, Texas, June 8, 2000).

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