Managed Health Care in Prisons as Cruel and Unusual Punishment

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In an effort to cut costs, many state and county incarceration facilities have turned to private managed health care organizations to provide health care for their prisoners. Despite --or, perhaps, because of--the money saved by the government and the money made by managed care organizations, the level of health care in these facilities has decreased, and prisoner complaints and lawsuits are on the rise. Private managed health care in prisons has resulted in inmate injuries and deaths, many of which have been and are being challenged on Eighth Amendment grounds. Constitutional violations in prison health care are determined under the deliberate indifference standard. The Supreme Court has held that government entities, or private companies carrying out governmental duties, can be held liable for systemic deliberate indifference violations where the entity promulgates an official custom or policy that violates prisoners? constitutional rights. Without question, some managed health care systems in prisons contain aspects that constitute an official custom or policy that violates prisoners' constitutional rights. Some aspects of managed care, particularly direct financial incentives to avoid treating inmates, constitute per se deliberate indifference. Courts should find that the implementation of these policies always fails constitutional muster. Other aspects of managed care create a rebuttable presumption that deliberate indifference exists. Measures to save money--such as cutting staff, hiring less qualified staff, and denying, delaying or providing inefficacious treatment--can give rise to a rebuttable presumption that deliberate indifference has occurred. Legislatures might consider banning private managed health care in prisons and jails. In the alternative, legislatures might consider enacting and departments of corrections might consider contracting for provisions that ensure the adequate treatment of inmates. Absent these alternatives, the use of managed health care in incarceration facilities, and the decreased level of care that comes along with it, should remain under the constant vigilance of federal and state courts, whose obligation it is to enforce the Constitution of the United States.