CLERK OF COURT

IN THE SUPREME COURT OF OHIO
FRED V. BERRY
Case No. 10-0740
Respondent,
[CERTIFICATION OF STATE LAW
QUESTION FROM FEDERAL COURT]
V.
LUCAS COUNTY BOARD OF,
COMMISSIONERS, ET AL.
Petitioners
PETlTIONERS' PRELIMINARY MEMORANDUM
JULIA R. BATES
LUCAS COUNTY
PROSECUTING ATTORNEY
Jeffrey C. Zilba(0038676)
7300 International Drive
Ste. 200
John A. Borell(0016461)
Maureen O. Atkins(0063379)
Assistant Prosecuting Attorneys
Suite 250
Toledo, Ohio 43624
Telephone: (419) 213-2001
Fax: (419) 213-2011
Holland, OH 43528
Telephone: (419) 255-1515
Fax: (419) 255-2332
Email: [email protected]
E-mail: JABorell@co.[ucas.oh.us
COUNSEL FOR PETITIONERS
Corey L. Tomlinson(0081894)
709 Madison Ave.
310 Bell Building
Toledo, OH 43604
Telephone: (419) 868-8500
Email: [email protected]
COUNSEL FOR RESPONDENT
OCT 25 %?il)`J
CLERK OF COURT
LSUPRENiE CqURT ^^
TABLE OF CONTENTS
Table of Authorities ......................... ......... ...............................................................i
1. Statement of the Case ................................................................................2
II. Statement of the Facts................................................................................3
Iil. Argument
A. Statutory Interpretation.....................................................................9
B. The Legislative Intent in Enacting Pay-to-Pay Statutes was to
Create Offender Accountability for the Cost of Incarceration
And Relieve the Increasing Tax Burden on the Citizens of
Ohio of Such Costs ........................................................................10
C. The Ohio General Assembly Intended, pursuant to
R.C. 341.19(B) and 2929.38(A) the Pay-to-Stay
Statutes to Authorize County Jails to Collect a One-Time
Reception Fee for Pre-Conviction Processing into
the Facility and Medical and Dental Expenses if
the Prisoner Pleads Guilty or is Convicted of an Offense..............12
IV. Conciusion ................................................................................................16
Certificate of Service ...........................................................................................17
APPENDIX Appx. Pages
Final Bill Analysis-Sub. H.B. 170, Ohio Legislative
Commission(2002) ................................................................1
Jail Pay-for-Stay(Sub. H.B. 480), Ohio County
Commissioners Association(1997) ........................................7
R.C. 341.19 ........................................................ ............ ...... .......... 22
R.C. 2929.37 .:......... ........................ ...............................................24
R.C. 2929.38 ..................................................................................26
TABLE OF AUTHORITIES
CASES
Cochrel v. Robinson (1925), 113 Ohio St. 526, 149 N.E. 871 ...............................9
Humphrys v. VVinous Co. (1956), 165 Ohio St. 45, 49, 133 N.E.2d 780 ................9
Provident Bank v. Wood(1973), 36 Ohio St.2d109,304N.E,2d378 ........................9
State ex rel. Francis v. Sours (1944), 143 Ohio St. 120, 124, 53 N.E.2d 1021.....9
STATUTES
R.C. 1.05 ..............................................................................................................14
R.C. 1.42 ..............................................................................................................14
R. C. 1.49 .............................................................................................. ................10
R.C. 307.93 ........... ........... ..................... ........ ................ ........ ............. ..6, 11, 12, 13
R.C. 341.06 ...... ................. .................................................. .................................11
R. C. 341.14 .............................................................. ............................................11
R.C. 341.19 ......................................................................................8, 9, 11, 12, 14
R. C. 341.23 ..................................................... ................. ................ ....................11
R. C. 2301.56 ....... ................................ .......... ................................:......................11
R.C, 2929.37 ..............................................................................6, 9, 11, 13, 14, 15
R.C. 2929.38 ..........................................................................................8, 9, 13, 15
R. C. 2947.19 ............................. .................................................. :.......... .............. 11
RULES
S.Ct.Prac.R. 18.1 ...............................................................................................3, 8
OTHER
1995 Ohio Op. Atty Gen. No. 28 ..........................................................................10
2005 Ohio Op. Atty Gen. No. 19 ................................................................6, 11, 14
1. STATEMENT OF THE CASE
On December 24, 2008, Respondent Fred V. Berry filed a Complaint for
declaratory judgment, injunction, and damages in the United States District Court for the
Northern District of Ohio. The Complaint alleged that the Petitioners, the Lucas County
Commissioners and Lucas County Sheriff James Telb, had violated his Fifth and
Fourteenth Amendment due rights through their "pay-to-stay" program at the Lucas
County Corrections Center. The Complaint alleged the following causes of action: (1) a
§1983 claim based on an alleged violation of the plaintiffs rights under the Fifth and
Fourteenth Amendments to the United States Constitution; (2) declaratory judgment
finding that the pre-conviction booking fees and per diem charges were improperly
assessed by the defendants; (3) injunctive relief; and (4) monetary relief. The complaint
also sought class action certification.
On April 1, 2009, the Respondent filed a First Amended Class Action Complaint.
The First Amended Complaint added detailed class allegations. It also added two
additional cause of action(1) a claim alleging that the Petitioners' booking fee collection
policy violated the named Respondent's and members of the proposed class' rights
under Article I, Section 10 of the United States Constitution, which prohibits a bill of
attainder. Id., IM 44-48 and (2) a claim alleging that the Petitioners' pay-to-stay program
violated Ohio law.
On May 1, 2009, the Respondent filed a motion for partial summary judgment.
The motion sought judgment on the claims based on the alleged violations of the Fifth
and Fourteenth Amendments and the Constitutional prohibition against bills of attainder.
2
The Petitioners also filed a motion for summary judgment and cross-motion for
summary judgment. The Petitioners' motion argued that their current pay-to-stay
program was operated in accordance with the terms of settiement approved in a
previous lawsuit involving the pay to stay program and did not violated the Fifth and
Fourteenth Amendments or Ohio law.
The District Court granted summary judgment to the Petitioners herein on the
claims based on bill of attainder and violation of substantive due process. The Court
denied Mr. Berry's request for summary judgment based on a violation for procedural
due process.
On Aprii 28, 2010, the following question was certified to this Court by the Hon.
James G. Carr, United States District Court for the Northern District of Ohio, Western
Division, pursuant to S.Ct.Prac.R. 18.1:
May a prisoner reimbursement policy adopted by a board
of county commissioners pursuant to O.R.C; § 341.19 require
a convicted criminal offender to reimburse the county for the costs
it incurred as a result of the offender's confinement in a local
detention facility prior to the commencement of sentence?
On August 25, 2010, this Court accepted the certified state law question.
Ii. STATEMENT OF THE FACTS
In 1996, recognizing the importance of offender accountability, the cost of
incarceration and its increasing tax burden on the citizens of Ohio, the General
Assembly enacted Sub. H.B. 480 which was titled the "Prisoner Reimbursement Policy;
Fees for Medical Treatment Services."
On or about October 26, 2000, the Lucas County Commissioners approved a
"pay-to-stay" program in the Lucas County Corrections Center. The purpose of the
program was to attempt to recoup taxpayer dollars allocated to the Lucas County
Corrections Center for the expense incarcerating inmates.
On August 8, 2001, the pay-to-stay program approved by the County
Commissioners was implemented in the Lucas County Corrections Center by Petitioner
James A. Telb, Lucas County Sheriff. This program charged new inmates a $50.00 onetime processing fee at the time of the initial booking into the jail and a $60.00 per diem
housing fee. The program also allowed the fees to be taken directly from any funds that
were in the possession of the inmate at the time of booking. If the inmate did not have
adequate funds in his possession to cover the booking and per diem fees, the charges
were assessed to the inmate's account. The Petitioners contracted with an outside
company to collect the outstanding fees.
On May 1, 2002, a class action lawsuit was filed the United States District Court
for the Northern District of Ohio by James Koltiska against various Cuyahoga County
defendants relating to the pay to stay program operated by the Cuyahoga County
Sheriff.' This complaint asserted a §1983 claim based on an alleged violation of the
Fifth and Fourteenth Amendments to the United States Constitution. The program
operated by the Cuyahoga County Sheriff was similar to the program that was being
operated by the Lucas County Sheriff.
'James Koltiska, et ai. v. Richard J. McMonagle, ef at., N.D. Ohio Case No. 1:02-CV-1874.
4
On September 6, 2002, House Bill 170, which had been enacted by the Ohio
General Assembly, became effective. The primary purpose of H.B. 170 was to expand
the costs that were subject to recovery from an offender in the custody of the Ohio
Department of Rehabilitation and Correction and to consolidate a number of parallel
provisions regarding reimbursement of the costs of confinement by a person confined in
a local detention facility. (Appendix pp. 1-6).
On November 2, 2002, Mr. Koltiska filed an Amended Class Action Complaint.
The Amended Complaint named as defendants 40 county sheriff's, including the Lucas
County Sheriff. Once again, the Amended Complaint asserted a §1983 cause of action
based on a challenge to the pay-to-stay programs operated by the named defendants
on the basis that the program violated the due process requirements of the Fifth and
Fourteenth Amendments of the United States Constitution.
On March 21, 2005, the parties submifted a joint seftlement proposal. The
proposed settlement recognized and took into account the provisions of House Bill 170.
On July 21, 2005, the Court certified the Koltiska litigation as a class action.
On September 9, 2005, the District Court found that the proposed settlement was
fair, reasonable, and adequate. The Court's Judgment Entry approved the settlement
and closed the case. The settlement approved by the Court allowed the defendants,
including Lucas County Sheriff Teib, to continue operating a pay-to-stay program and to
collect the one-time booking fee. The Court approved settlement allowed the
defendants to continue collecting a booking fee upon an inmate's incarceration,
although the inmate could not be compelled to pay the booking fee.
5
The Court approved settlement required that the defendants to deposit the
booking fee into a "trust account" for the benefit of the inmate to be applied to his or her
pay-to-stay obligation upon conviction. If any inmate was not convicted within 180 days
of booking, the entire booking fee had to be returned to the inmate out of the trust
account.
In addition, the Court approved settlement allowed the Petitioners to recover the
cost of repairing property damaged by prisoners, the cost of medical and dental care for
prisoners, and the fees associated with random drug tests. id. The recovery of these
costs is permitted by H.B. 170.
The petitioners' current pay-to-stay program is operated in accordance with the
Court approved settlement.
On April 29, 2005, the Ohio Attomey General issued an opinion stating that a
board of county commissioners was not authorized by R.C. 307.93(D) or R.C.
2929.37(A) to adopt a policy that requires a convicted offender serving in a local
detention facility to repay the county for the costs it incurred as a result of his
confinement in the facility prior to the commencement of his sentence. 2005 Ohio Op.
Atty.Gen. No. 19.
On August 25, 2008, the Respondent Fred V. Berry was arrested by the Ottawa
Hills Police Department for disorderly conduct while intoxicated. Mr. Berry was booked
into the Lucas County Corrections Center where he paid the booking fee. As required
by the Court approved settlement, the booking fee paid by Mr. Berry at the time of his
incarceration was placed in the "Escrow Trust Account".
6
On December 24, 2008, Respondent filed a Complaint for declaratory judgment,
injunction, and damages. The Complaint alleged that the Lucas County defendants had
violated his Fifth and Fourteenth Amendment due rights through their "pay-to-stay"
program at the Lucas County Corrections Center. The Complaint alleged the following
causes of action: (1) a §1983 claim based on an alleged violation of the plaintiffs rights
under the Fifth and Fourteenth Amendments to the United States Constitution; (2)
declaratory judgment finding that the pre-conviction booking fees and per diem charges
were improperly assessed by the defendants; (3) injunctive relief; and (4) monetary
relief. The complaint also sought class action certification.
On January 21, 2009, the Toledo Municipal Court dismissed the charges that had
been filed against Mr. Berry. In accordance with the Court approved settlement, the
Petitioners returned the booking fee to the Respondent.
On April 1, 2009, the Respondent filed a First Amended Class Action Complaint.
The First Amended Complaint added detailed class allegations. It also added two
additional cause of action(1) a claim alleging that the defendants' booking fee collection
policy violates the named plaintiffs and members of the proposed class' rights under
Article t, Section 10 of the United States Constitution, which prohibits a bill of attainder.
Id., ¶¶ 44-48 and (2) a claim alleging that the defendants pay-to-stay program violated
Ohio law.
On May 1, 2009, the Respondent filed a motion for partial summary judgment.
The motion sought judgment on the claims based on the alleged violations of the Fifth
and Fourteenth Amendments and the Constitutional prohibition against bills of attainder.
7
The defendants also filed a motion for summary judgment and cross-motion for
summary judgment. The defendants asserted that they were entitled to summary
judgment, since the current pay-to-stay program operated in accordance with the terms
of settiement approved in a previous lawsuit involving the pay to stay program, does not
violated the Fifth and Fourteenth Amendments or Ohio law.
The District Court granted summary judgment to the petitioners herein in the
claims based on bill of attainder and violation of substantive due process, The Court
denied Mr. Berry's request for summary judgment based on a violation for procedural
due process.
On April 28, 2010, the following question was certified to this Court by the Hon.
James G. Carr, United States District Court for the Northern District of Ohio, Western
Division, pursuant to S.Ct.Prac.R. 18.1:
May a prisoner reimbursement policy adopted by a board
of county commissioners pursuant to O.R.G. § 341.19 require
a convicted criminal offender to reimburse the county for the costs
It incurred as a result of the offender's confinement In a local
detention facility prior to the commencement of sentence?
On August 25, 2010, this Court accepted the certified state law question. The
Petitioners, the Lucas County Commissioners and Lucas County Sheriff James Teib,
now submit their merit brief requesting that this Court respond to the certified question
in the affirmative.
Specifically, the Petitioners have established herein that Sections 341.19(B) and
2929.38(A) authorize county jails to collect a one-time reception fee for pre-conviction
8
processing into the facility and the cost of medical and dental care if the prisoner pleads
guilty or is convicted of an offense.
III. ARGUMENT
A. Statutorv Interpretation
The question certified by the United States District Court involves the
interpretation of Ohio's "pay-to-stay" statutes as applied to local detention facilities. For
a local detention facility, such as the county jail operated by Petitioner Lucas County
Sheriff, the relevant statutes are R.C. 341.19, 2929.37 and 2929.38.
When interpreting a statute, this Court's principal concern is the legislative intent
in enacting the statute. State ex ret. Francis v. Sours (1944), 143 Ohio St. 120, 124, 53
N.E.2d 1021. In determining that intent, "a court should consider the language used and
the apparent purpose to be accomplished, and then such a construction should be
adopted which permits the statute and its various parts to be construed as a whole and
gives effect to the paramount object to be attained." Humphrys v. Winous Co. (1956),
165 Ohio St. 45, 49, 133 N.E.2d 780. Thus, the court must first look to the language of
the statute itself to determine legislative intent. Provident Bank v. Wood(1973), 36 Ohio
St.2d 101, 304N. E.2d378.
When a statute is ambiguous, the court must look beyond the words of the
statute and construe it in a manner that reflects the purpose of the General Assembly.
Cochrel v. Robinson (1925), 113 Ohio St. 526, 3 Ohio Law Abs. 740, 149 N.E. 871, 23
Ohio L. Rep. 607. In determining the intent of the General Assembly, the court may
9
consider the objective of the statute and the consequences of any particular
construction. R.C. 1.49(A) and (E).
B. The Legislative Intent in Enactinci Pay-to-Stay Statues was to Create
Offender Accountabiiitv for the Cost of Incarceration and Relieve the
Increasing Tax Burden on the Citizens of Ohio of Such Costs
Prior to 1995, counties had very limited ability to seek reimbursement from
prisoners that were confined in county jails. With the exception of certain misdemeanor
offenders, local correctional facilities could seek reimbursement for food, clothing, and
shelter expenses incurred during confinement. (Appendix p. 7). However, the
reimbursement could only be ordered by a court at the time of sentencing. id.
Beginning in the 1990's, many local correctional facilities across Ohio began
charging prisoners for medical care, dental care, and prescriptions. (Appendix p. 8).
There fees or co-pays were frequently deducted from the prisoners' commissary
accounts. ld.
Even though the counties recognized their duty to provide medical care for
pers,ons confined in a county jail, there were abuses by the prisoners that increased the
costs to the counties. 1995 Ohio Op. Atty. Gen. No. 28. A prisoner's desire to seek
medical care was often caused more by a desire to get out of jail rather than a real need
for medical care. Id. Local correctional facilities believed that, charging prisoners, would
not only reduce costs to taxpayers', but also correct inmate abuses. Id.
However, on September 26, 1995, the Ohio Attomey General issued an opinion
that a county sheriff had no authority to collect fees from the personal funds of prisoners
10
for the cost of medical care while a person was confined in a county jail. Id. (Appendix
p. 8).
As a result of this limited ability of a county to seek reimbursement from prisoners
for the costs of confinement, the Ohio General Assembly, in 1996, enacted Sub. H.B.
480. This law expanded the ability of local detention facilities to collect reimbursements
from prisoners. (Appendix p. 7).
Sub. H.B. 480 established an alternate prisoner reimbursement mechanism °in
lieu of" the judicial method. (Appendix p. 11). The guiding statutes for the "in lieu of "
reimbursement mechanism were found in R.C. 307.93(E), 341.06(A), 341.14(C),
341.19(B), 341.23(D), 2301.56(C), and 2947.19(C). Id. These statutes authorized
county commissioners and/or a county sheriff to establish a reimbursement policy for
the county jail. Id. Counties were authorized to recover the actual costs of room and
board up to a $60 per day maximum, the actual cost of medical and dental care, and the
costs of any damage to government property caused by the prisoner. Id.
Effective September 6, 2002, the 124th Ohio General Assembly, once again,
amended the pay-to-stay statutes by enacting H.B. 170, which repealed R.C. § 341.06
and amended R.C. § 341.19, which now states:
(A) Pursuant to section 2929.37 of the Revised Code, the board of county
commissioners may require a person who was convicted of an offense and who
is confined in the county jail to reimburse the county for its expenses incurred by
reason of the person's confinement.
(B) Notwithstanding any contrary provision in this section or section 2929.18,
2929.28, or 2929.37 of the Revised Code, the board of county commissioners
may establish a policy that complies with section 2929.38 of the Revised Code
and that requires any prisoner who is not indigent and who is confined in the
II
county's jail under this section to pay a reception fee, a fee for any medical
treatment or service requested by and provided to that prisoner, or the fee for a
random drug test assessed under division (E) of section 341.26 of the Revised
Code.
The primary purpose of H.B. 170 was to expand the cost debts subject to
recovery from an offender in the custody of the Ohio Department of Rehabilitation and
Correction and to consolidate a number of parallel provisions regarding reimbursement
of the costs of confinement by a person confined in a local detention facility. (Appendix
pp. 1-6).
As can be seen from the history of Ohio's pay-to-stay statutes, the primary
purpose of such programs is to lessen the burden on taxpayers of the cost of operating
prisons, jails and other types of correctional facilities.
G. The Ohio General Assembly tntended, pursuant to R C 341 19(B) and
2929.38(A) the Pay-to-Stay Statutes to Authorize County Jails to
Collect a One-Time Reception Fee for Pre-Conviction Processing into
the Facility and Medical and Dental Expenses if the Prisoner Pleads
Guilty or is Convicted of an Offense
The question certified to this Court has significant state-wide financial
implications for all county jails and other local detention facilities. The Respondent urges
this Court to accept the opinion of the Ohio Attorney General that a board of county
commissioners is not authorized by R. C. 307.93(D) and 2929.37(A) to adopt a policy
that requires a convicted offender confined in a local detention facility to repay the
county for the costs it incurred as a result of his confinement in the facility prior to the
commencement of his sentence. 2005 Ohio Op. Atfy.Gen. No.19.
12
However, many county jails, such as the facility operated by the Petitioners, are
primarily pre-triai detention facilities. Therefore, if this Court accepts the Attomey
General's interpretation of Ohio's pay-to-stay statutes, then these county jails will not be
able to seek reimbursement and the primary purpose of the law will be thwarted. In
addition, the Attorney General's opinion is based, in part, on R.C. 307.93(D). This
section of the Ohio Revised Code applies to multi-jurisdictional correctional facilities.
R.C. 307.93(A). It does not apply to countyjaifs.
Additionally, the Attorney General's opinion does not discuss the difference in
wording between Sections 341.19(8) and 2929.38(A), which authorize the collection of
a one-time processing fee and the costs of medical and dental care, Sections 341.19(A)
and 2929.37(A), which authorize the collection of other costs. This difference clearly
establishes that Ohio law authorizes a county jail to collect a one-time processing fee
and the cost of medical and dental care incurred prior to conviction and sentence from
prisoners who plead guilty or are found guilty of an offense.
R.C. 2929.38(A) states that "a board of commissioners of a county, in an
agreement with the sheriff, a legislative authority of a municipal corporation, a
corrections commission, a facility governing board, or any other public or private entity
that operates a local detention facility described in division (A) of section 2929.37 of the
Revised Code, may establish a policy that requires any prisoner who is confrned in the
facility as a result of pleading guilty to or having been convicted of an offense to pay a
one-time reception fee for the costs of processing the prisoner into the facility at the
time of the prisoner's initial entry into the facility under the confinement in question, to
13
pay a reasonable fee for any medical or dental treatment or service requested by and
provided to that prisoner. It is important to note that the Generai Assembly chose to use
the term confined and not imprisoned in the statute.
The statute does not define 'confined' or 'confinement'. Therefore, this Court
must give it its common meaning. R.C. 1.42. Confined is merely a generalized term
meaning something that restrains. Meriam-Wetrster, Inc.(2010). Confinement is not
limited to post-conviction incarceration. 2005 Ohio Op. Atty Gen. No. 19, 2005 Ohio AG
LEXIS 24 "'14-5.
The General Assembly would have worded R.C. 2929.38(A) more explicitly to
limit the one-time processing fee and the reimbursement of medical and dental costs to
sentenced prisoners if that had been its intent. Indeed, if its intent was to create such a
limitation, the General Assembly would have used the word imprisoned instead of
confined, since it has defined imprisoned as a person who has had a sentence imposed
for committing an offense. R.C. 1.05(A).
Indeed, that is exactly what the General Assembly did in those sections of the
pay-to-stay statute relating to the reimbursement of other costs for jail expenses. A
board of county commissioners may adopt a policy that requires prisoners who are
convicted of an offense and who are confined in the facility under a term of
imprisonmenf to pay all or part of the costs of confinement in that facility. R.C.
341.19(A), 2929.37(A).
14
Clearly, a comparison of Section 2929.37(A) and 2929.38(A) establishes that the
General Assembly understood the significance in its use of the term confined instead of
imprisoned.
Additionally, R.C. 2929.38(A) allows the collection of the one-time reception fee
for the costs of processing the prisoner into the facility at the time of the prisoner's
initial entry into the facility under the confinement in question. The statute does not limit
the collection of the fee to the initial entry into the facility after sentencing.
Thus, by using the term confined rather than imprisoned and not specifically
limiting the `initial entry' to post-conviction entry, the General Assembly has expressed
its intent not limited the obligation to pay the one-time reception fee and the costs of
medical care only to those persons who are actually sentenced to a term of
imprisonment in a county jail. This interpretation of the statute in consistent with the
public policy of reducing the burden on taxpayers for the costs of operating a detention
facility
15
IV. CONCLUSION
The Petitioners respectfully request that this Court respond to the question
certified by the federal district court by holding that Sections 341.19(B) and 2929.38(A)
of the Ohio Revised Code authorize county jails to collect a one-time reception fee for
pre-conviction processing into the facility and the cost of medical and dental care, if the
prisoner pleads guilty or is convicted of an offense.
Respectfully submitted,
JULIA R. BATES
LUCAS COUNTY PROSECUTING ATTORNEY
John A. Rorell
Assistant Prosecuting AYtorney
Counsel for Petitioners
16
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing Preliminary Memorandum was sent
by E-mail on the 25th day of October, 2010 to:
Jeffrey C. Zilba
7300 International Drive
Ste. 200
Holland, OH 43528
Email: [email protected]
Corey L. Tornlinson(0081894)
709 Madison Ave.
310 Bell Building
Toledo, OH 43604
Email: coreytomlinson@gmaiLcom
hn A. Bor
ounsel for Petitioners
17
APPENDIX
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Fina! Bill Arralj^sis
Lcgislatire Service C'o+rltnission
Effective Date frcm the Status Report of Legislation: 09/06/02 L'-ffective
13rcatcrr erfY)hio Supreme Cunrt intcr/uclatiuns, cffectir¢ dates puh/ishrd rn the Status Report
nf Legixlatinn trrr nnt
I^.oulhuritatYee. und u.xer,s of tlte Statu.t Reptrt of Legixlation refr
upun thenr ut their rnrn risk The cflecrne J<uet hair
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Signed 6j• Governor: 06/07/02
Subject: CrirneslCorr-ectionland Luu, Enforcerraent
Sub. H.B. 170
124th General Assembly
(As Passed by the General Assembly)
Reps. Schuring, Flowers, Schaffer, Willamowski, Seitz, Husted,
Ogg, Cire1F^ , Webster,. Barrett, Roman, Reideibach, Niehaus,
Lendrum, Carmichael, Hollister, Schmidt, Otterman, Cates,
Schneider, Manning, Hartnett, Latell, Britton, Rhine, Buehrer,
Carey, Grendelt, Perry, Salerno, Widowfield
Sen. Oelslager
Effective date: September 6, 2002
ACT SUMMARY
Healttt care services for offenders irr custodl, of URC
- Expands the cost debts subject to recovery from an offender in
the custody or under the supervision of the Departnient of
Rehabilitation and Correction (DRC) to specifically include the
cost of any medical care provided to the offender while in DRC's
custody or under DRC's supervision.
• Expands a provision that, in certain circumstances, prohibits a
benefits contract from limiting or excluding coverage for the
reason that the beneficiary is under "confinement" to specifically
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include as confinement any period of time during which a person is
in DRC's custody or under DRC's supervision.
For each offender in DRC's custody or under DRC's supervision,
authorizes DRC to make a determination as to whether the
offender is covered under an individual or group sickness and
accident insurance policy or an individual or group health insuring
corporation policy, contract, or agreement (liereafter, "health care
coverage") and, if the offender has that coverage, requires DRC to
familiarize itself with the terms and conditions to receive benefits
under the policy, contract, or agreement.
• If the offender has health care coverage, permits DRC or the
provider of healtli care services to an offender to submit a claim
for payment for the health care services to the appropriate
third-party payer whenever DRC renders or arranges for the
rendering of health care services to the offender.
• Specifies that: (1) if the policy holder is the offender, the
offender must be required to assign payment of benefits directly to
the provider or DRC, (2) if the policy holder is not the offender,
the policy holder must be asked to voluntarily provide policy
information and assign payments directly to the provider or DRC,
as appropriate, and (3) the policy holder and third-party payer
must make all arrangements necessary to ensure that paynlent of
any amount due on the claim is made to the provider or DRC as
specified in the assignment.
• Requires any payment made to DRC under any of these
provisions to be deposited into the Offender Financial
Responsibility Fund.
• Specifies that, if DRC pays a provider for health care services
rendered to an offender and payment subsequently is made for the
same services by a third-party payer, the duplicate payment must
be refunded to DRC by the provider and must be deposited into
the Offender Financial Responsibility Fund.
10'182010 I0:30AM
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• Specifies that, if an offender has healtli care coverage, DRC
must determine, after considering security, public safety, and
transportation issues, whether or not to render or arrange f'oihealth care services in accordance with the coverage, and permits
DRC, based on that consideration, to arrange for health care
services for the offender at a health cai-e facility or by a provider
not covered under the coverage and pay the costs of the services
for the offender.
• If DRC pays for health care services for an offender, gives it the
right to seek reimbursement from a third-party payer for the
services if it subsequently is determined that the offender had
health care coverage.
• Provides that, if DRC determines that an offender has or
potentially has health care coverage and the offender receives
health care services: (1) DRC is responsible for any cost-sharin^,
.^
co-payments, or deductibles required under the health care
coverage, (2) if the insurer or potential insurer denies the claim for
payment, DRC remains liable for payment to the provider of
services, and (3) if an insurer covers a service but pays less than
the amount negotiated and established by contract between DRC
and the provider of the services, DRC is liable for reimbursing the
difference to the provider.
• Requires DRC to examine the feasibility and desirability of
purcliasing in.surance coverage to protect against unpredictable or
catastrophic losses that may be incurred by the state in the
provision of health care services to offenders who are in DRC's
custody or under its supervision and, within six inonths after the
act's effective date, to report its findings and recommendatioizs to
specified members of the General Assembly.
• Requires DRC to develop specifications for a utilization revieiv
program under which the clinical necessity, appropriateness,
efficacy, or efficiency of any outside health care service
Io'1s'301o 10:30 AR9
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recommended for an offender may be evaluated by an extei-nal
utilization review organization, to request proposals for the
provision of services of that nature, and, within six montlis after
the act's effective date, to report the i-espo:i.ses to the request to
specified members of the General Assembly.
• Specifies that DRC is not required to enter a contract for the
provision of services of the nature described in tlie preceding dot
point unless money has been appropriated to DRC adequate tofund the provision of services of that nature.
Requires DRC to adopt rules to establish a schedule of health
care services available to offenders in its custody or under its
supervision and to establish a prograrn to encourage tlae utilization
of preventive Iiealth care services by offenders.
Reinrbrrrsemerrt nfcnsts rrfarr offender's c•nrrflrre^ nent in a local detentiorr fcrcrliti
ordered br court as part ofserrtence
• Permits a court imposing sentence upon an offender for a felony,
in all circun7stances, to impose a financial sanction of
reimburseinent by the offender of all or part of tl-Ee costs of
confinement under a prison term or community residential sanction
imposed upon the offender, provided that the reimbursement
ordered cannot exceed the total amount of reimbursement the
offender is able to pay and cannot exceed the actual cost of the
confinement.
• Specifically permits a court imposing sentence upon an offender
for a misdemeanor to sentence the offender to a sanction that
i-equires the offender to reimburse the government for all or part of
the costs of confinement in a local detention facility, including, but
not limited to, a per• diem fee for room and board, the costs of
medical and dental treatment, and the costs of i•epairing property
damaged by the offender while confined, provided that the
reimbursement ordered camiot exceed the total amount of
IO`IF'2010 10 .30 AM
fci+ bistim_ Final Anuhsis bttp. I.cstatcoh.us anukscs f'nlaIN.iuCAll l9t11s and Krmduuan. C
reimbursement the offender is able to pay and cannot exceed the
actual cost of the confinement, and pi-ovides procedures for
determining the amoUunt of the reimbursement and for collecting
the ainount to be reimbur-sed.
Reinrbarsement of costs of rrn affender's c{mrnenreitt in ri focn! tletentian facilitl itr
otGer circnnr.stnnces
- Consolidates a number of par-aliel provisions regarding
reimbursement of the costs of confinement by a person confined in
a local detention facility, \vhen the reimbursement is required
pursuant to a specified "standard procedure" by the governmental
entity that operates the facility or pursuant to a ^nedical fee
reimbursement mechanism.
• Modifies the list of costs that inay be required to be repaid
pursuant to a repayment policy under the "standard procedure,"
including adding a specific reference to the costs of repairing
property damaged by the prisoner while confined and reinoving a
reference to overtime costs law enforcement personnel incurred
relative to the prisoner's trial.
• Provides that, each prisoner covered by a repayment policy under
the "standard procedure" must receive at the end of the prisoner's
confinentent an itemized bill of the expenses to be reimbursed,
provides methods of payment of the bill and specified periods of
tiine within which the prisoner inust pay or dispute the bill,
provides procedures including a hearing for determining a dispute
regarding the bill, provides procedures for the collection of a bill
that is not paid and not disputed within specified periods of time
that include the issuance by the appropriate clerk of cour-t of a
certificate of judgment against the prisoner for the balance of the
expenses remaining unpaid, and requires that the offender's
sentence include provisions describing the collection procedures.
Repeals provisions regarding a repayment "policy" used "in lieu
10'18'3010 10:30 Ah-t
r\ icu I:\isting 1'inal :lrahsis
http Isc.smteiahus anaklscs litlal^a-nsf A11 f3ilb aud Rctioluttun. C'.
of' the standard procedure.
• Generally permits the costs of confinement recovered pursuant to
a repayment policy under the "standard procedure" or pursuant to
the medical fee reimbursement Irleclianisfn to include a olie-time
reception fee for the costs of processing the prisoner into the local
detention facility at the tit»e of the prisoner's initial entry into the
facility under the confineanent in question.
Daflr- rtne crrdi7 t*iven to atr offender jailed for fnilure to pal' a frre
• Increases from $30 to $50 the daily fine credit that is given to an
offender who is cominitted to a jail or workhouse or otherwise
held in custody in satisfaction of a fine imposed upon the offender
under a sentence for a criininal offense.
TABLE OF CONTENTS
licalth care scrvices forofTenders_in custcrdv af DRC. 6
DRC rccovcrv of cost debts for health care. 6
4fTendersivith health_insurance: 6
DRC to_examine the feasibilltyand desirabiiitv ofpurcliasin! insurance covcraec. 9
DRC to r-eguest proposals for a utilization reviet+ pro^rant.. 9
Rtiles regardine healtii care ior oflenders. 9
Reinibursenient ofcosts of an ofTender's confincment in a local dctention
(acilitv. ordered bv court as part ofsentcnee. 10
Felony.oflenders-_continuintz law arid prior 10
Fclony cifTenders--opcration of tlic act ) I
Misdenicanor off'endcrs--prior law.. 12
Misd_emeanoroffendels--operation oftheact 1')
Rcienbursement ofcosts of an olTender's conlinement in a local detention
fijcilitv, in othcr circumstancc5 15
Introduction_15
Standard pioccdurc for reinihursing costs ofconfncnicnt, b^• requireementoflcListativc
authoritv 16
Alteriative procedure for reinibursing costs of cc^nfi_nement14
Costs for medical treatmmn t, or service or rando rn drut-, test, eic._? 1
Definitions rc,ardinn local detcntion facilitv reinibwsenicnt'''
„
•
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»,
10'18'?010 10S0 ,hM
COUNTY ADVISORY BULLETIN
CAB
Published by: County Commhsioners Associa
o10hio
37Wesl Broad Street. Suite 630 . Columbus, 011,0 432154195
Phone; 614-2I1 5627 'fax614-221-6986 • www.ccaooag
BULLETIN 1997-01
February 1997
JAIL PAY-FOR-STAY (SUBSTITUTE HOUSE BILL 480)
INTRODUCTIQN
Prior to the passage of Sub. H.B. 480, existing law provided mechanisms for the
reimbursement of confinement from offenders sentenced to local correctional facilities (i.e.
countyjails, multi-county correctional facilities, community based correctional facilities, and
workhouses) for offenses other than minor misdemeanors. The amount of reimbursement
was generally determined by a judge at the time of sentencing and was based on the
offenders ability to pay. With the exception of ceriain misdemeanor offenders in multijurisdictional facilities or municipal workhouses, local correctional facilities could seek
reimbursement for food, clothing, and shelter expenses incurred during the offenders
confinement; medical expenses were not included. The reimbursement exception for
misdemeanor offenders in multi-jurisdictional facilities (multi-county, municipal-county, and
multi-county-municipal correctional centers) and municipal workhouses allowed the
facilities to collect up to $40 a day (sec. 307.93(D), 2947.19(6), and 2929.223). Upon the
authorization of the local correctional facility the county prosecuting attorney was
authorized to file a civil action within one year of the offender's release to recover the
confinement costs from the offender. Any revenue collected went to the general revenue
fund(s) of the political subdivision operating the facility. Generally these mechanisms
pertained solely to misdemeanor offenders since most felony offenders were sentenced
to prison raiher than local correctional facilities.
The judicial mechanisms were amended by Am Sub. S.B. 2, the felony sentencing bill, and
Am. Sub. S.B. 269, the S.B. 2 corrective bill, which generally took effect on July 1, 1996.
As you may recall, S.B. 2 allowed certain felony offenders to be sentenced to local
correctional facilities. S.B. 2 also established a number of financial sanctions that a felony
offender could be sentenced to including the reimbursement of confinement costs(food,
clothing, and shelter expenses). Under S.B. 2, a judge could sentence felony offenders
to financial sanctions at either the time of sentencing or at a separate hearing if the judge
felt a separate hearing was necessary. The total amount that could be collected from
felony offenders for att financial sanctions could not exceed $10,000 and had to be based
on the offenders ability to pay. S.B. 2 required counties and municipal corporations to
establish "sanction cost reimbursement funds" for the deposit of reimbursed revenue for
the financial sanctions. Revenue in the fund could only be used to fund local sanctions
(i.e, jails and intensive supervised probation).
Also prior to the passage of Sub. H.B. 480, many local correctional facilities across the
state were deducting fees or co-pays from prisoner s commissary accounts for medical
care, dental care, and prescriptions. The fees helped reduce the number of sick calls
prisoners were requesting and reduced medical costs for correctional facilities
implementing the fee policy. In 1995 an opinion was requested from the Attomey General
regarding whether or not a county jail could implement such a fee policy. Following the
request, a September 26, 1995 Attorney General Opinion ( 95-028) stated "county sheriffs
have no authority to prescribe a schedule of fees to be collected from the personal funds
of a person confined in the county jail for the cost of medical care provided to that person
while confined".
Sub. H.B. 480 amended the existing prisoner reimbursement judicial mechanisms
including some provisions passed by S.S. 2; established an alternative reimbursement
mechanism "in lieu of" the exisfing judicial method; and authorized local correctional
facilities to charge non-indigent prisoners fees for medical treatment or services. The bill
also made several other changes relative to the operation of local correctional facilities
(see "TABLE 1" below for a summary of the bfil). This CAB will focus on the prisoner
reimbursement mechanisms and medical fee provisions amended or created by Sub. H.B.
480. The CAB provides a technical summary of the reimbursement programs for the
purpose of assisting county commissioners and sheriffs on their decision of whether or not
a program should be implemented, what type of program should be implemented, and how
such a program might be implemented.
2
TABLE 1: Summary o Provisions in Sub. H.S. 480
General Jail Provisions
Permits local correctional facilities to administer a program for the reimbursement of
confinement costs trom inmates and allows the correctional facilities to charge nonindigent inmates fees for medical treatment or services.
Relaxes existing statutory prohibitions related to the processing of juveniles within the
"sight and sound" of adult offenders by replacing this with the less restrictive notion
"beyond the range of touch". Note the statutes regarding the housing of bound over
juveniles were also changed to "beyond the range of touch" by H.B. 124.
Allows Sheriffs to hire civilian jail officers and the board of county commissioners, with
the consent of the sheriff, to contract for various services (i.e. food and medical services)
necessary for the care of county jail inmates.
Ailows local correctional facilities to establish a commissary and commissary fund.
MSMJ Provisions
Allows nonviolent fourth and fifth degree felons to be sentenced to a MSMJ and allows
sentenced felons to be transferred to a MSMJ. The bitl also re•categorizes MSMJs as
"minimum security jails", subjecting them to existing minimum jail standards promulgated
by DRC;
Other Provisions of Interest
Clarifies that the recent increase in compensation paid to sheriffs for the impact of S.B.
2 will not be included in the calculation of a sheriff's "furtherance of justice fund".
Establishes a Felon Medical Care Committee to study matters related to the liability of
political subdivisions for various medical treatment.
Grants investigators of the Bureau of Criminal Identification and Investigation arre
power,
PRISONER REIMBURSEMENT MECHANISMS
Now thaf the prisoner reimbursement laws have been changed by at least three bills this
last year, how do you seek reimbursement? There are three ways: (1) the judicial method;
(2) the new alternative mechanism "in lieu of" the judicial method; and (3) charging
prisoners fees for medical treatment or service.
1. Judiciai Reimbursement Mechanisms
The following bullets summarize how the judicial reimbursement mechanisms operate.
• The guiding statutes for this mechanism are in section 2929.223 (misdemeanor
offenders) and section 2929.18 (felony offenders) of the Revised Code.
• In the case of misdemeanor offenders, if the proper authority or board/sheriff of the
local correctional facility requires offenders to pay for their costs of confinement, the
sentencing judge must hold a reimbursement hearing atterthe offender is released.
If the judge is no longer serving the court, then any judge serving in that court shall
hold the hearing. Note prior to Sub. H.B. 480 the hearing that determined whether
a misdemeanor offender would be required to reimburse confinement costs was
held at the time of sentencing.
In the case of felony offenders, the county commissioners or board/sheriff of the
local correctional facility may adopt a policy that requires offenders to reimburse
their costs of confinemeni. If such a poticy is adopted, any court that sentences a
felony offender to a local correctional facility must impose the reimbursement
sanction on the offender at the time of sentencing. The county commissioners or
board of a local correctional facility may also choose to adopt a policy that prohibits
a court from imposing such a sanction on felony offenders.
At the hearings (sentencing hearing for felony offenders or post-confinement
hearing for misdemeanor offenders) the judge determines the amount of
reimbursement and the offenders ability to pay it. In the case of sentencing a felony
offender, the judge may hold a separate hearing to determine the amount of the
financial sanctions if it is necessary. In the case of a misdemeanor offender, the
amount of reimbursement is determined by a uniformly applied formula or sliding
scale based on the offender's ability to pay (see EXAMPLE 2 in the back for
examples of sliding scales).
The offender's ability to pay is generally based on the offender's financial resources,
obligations to dependents, and any obligation of restitution to victims.
Reimbursable expenses include food, clothing, and shelter costs as in pre-existing
law. In addition, the local correctional facility may be reimbursed for the costs of
dental and medical care; personal hygiene products including toothpaste,
toothbrushes, feminine hygiene items and other items; and up to two hours of
overtime costs that the sheriff incurred relative to the trial of the offender. However,
the amount of all the financial sanctions imposed upon a felony offender can not
exceed $10.000. Also the actual amount misdemeanor offenders can be charged
for medical care can not exceed 40% of the lotat medical expenses. Note: Sub.
H.B. 480 repealed the $40 per diem applicable to misdemeanors in certain multijurisdictional facilities or municipal workhouses.
4
-. , 1- ,..
The judge, at the time of a misdemeanor's reimbursement hearing, must establish
a re-payment schedule for the misdemeanor offender. Each payment of the
reimbursement schedule is considered a separate judgement. If the otfender fails
to meet the payment schedule the prosecuting attorney may execute upon the
judgment.
• Each court imposing a financial sanction on a feiony offender may designate a court
employee, a public agency, or private vendor to collect any monies owed by the
offender.
• The revenue collected by misdemeanor offenders using this reimbursement
mechanism shalt be deposited into the general revenue funds of the political
subdivision(s) operating the local correctional facility, while revenue collected from
felony offenders shall be deposited into the "sanction cost reimbursement fund".
2. Aernative Prisoner Reimbursement Mechanism " in t_ieu of Judictaf Method
The following bullets summarize how the alternative reimbursement mechanism operates.
• The guiding statutes for the "in lieu of" reimbursement mechanism can be found in
sections 307.93 ( E), 341,06(A), 341.14(C), 341.19(B),
341,23(Q), 2301.56(C), and
2947.19(C) of the Revised Code.
^ Before using the alternative reimbursement mechanism "in lieu of" the judicial
method a reimbursement policy must be established by the county commissioners
or board/sheriff of the local correctional facility. If this reimbursement mechanism
is used, then a policy that prohibits courts from imposing a confinement
reimbutsement requirement on felony offenders should also be adopted (see
section 2929.18(4)(A)). If such a prohibition is not adopted then the judicial
mechanism may be put into action by the judge at the time of sentencing, which
would conflict with the "in lieu of" method.
The expenses that are recoverable under this mechanism include: a maximum $60
per diem fee for room and board or actual costs whichever is less; actual charges
for medical and dental care; and the costs of any damage to government property
the inmate caused while confined.
• Rates would be charged on a sliding scale determined by the county commissioners
or board of the correctional facility (see "EXAMPLE 2" in the back for examples of
sliding scales). The rates are to be based on the offender's ability to pay and on
consideration of any legal obligations (i.e. spouse and child support). Generally the
total costs could be recovered via a payment plan established upon the inmate's
release.
A billing statement must be submitted to the offender upon release.
5
• The board/sheriff of the local correctional facility may appoint a reimbursement
coordinator to administer the reimbursement policy. The coordinator, or any other
person designated by the person(s) in charge of the facility, could investigate the
financial status by means that could include contacting employers and reviewing
income tax records. The coordinator may work with the confined person to create
a payment plan to be implemented upon the offenders release.
The reimbursement coordinator or another appointed person may collect unpaid
expenses. The coordinator or board of county commissioners may also contract
with public agencies and private vendors to collect the unpaid expenses.
Within 12 months after the offender is released the prosecuting attorney could file
a civil action to seek reimbursement from the released offender for any billing
amount thaf remains unpaid.
• All recovered expenses would be credited to the general fund of the political
subdivision that bore the expense and used for general fund purposes.
3. Mechanism for the Cottection of Medical Fees
In addition to charging inmates medical expenses
via a reimbursement mechanism, Sub.
H.B. 480 authorizes local correctional facilities to deduct medical fees from non-indigent
inmates' commissary accounts. `fhus; the bilt'nutfifies Attorney General Opinion 95-028
which ptohibited local correctionat facilities
frorn deducting sbch fees for medicai services.
The following bullets summarize how the medical fee mechanism operates.
• The guiding statutes for the medical fees mechanism can be found in sections
307.93(F), 341.06(B), 341.14(C), 341.19(B), 341.21(C), 341.23(E), 2301.56(D), and
2947.19(D) of the Revised Code.
• Upon the commencement of requested medical treatment, local correctional
facilities may assess a reasonable fee upon non-indigent prisoners.
• The payment of the required fee could be automatically deducted from the prisoners
account record in the facility's business office.
• lf there are no funds in the prisoner's account, a deduction could be made at a later
date during the prisoner's confinement if funds become available.
^ If the prisoner is released from the facility and has an unpaid balance of fees, they
may be billed for payment using one of the reimbursement mechanisms discussed
above.
Indigent prisoners can not be required to pay the fees and no person can be denied
6
medical care because of their inability to pay the fees.
• All fees collected under this mechanism must be distributed to the facility's
commissary fund. If the facility does not have a commissary fund the fee revenue
must be distributed into the treasuries of the political subdivisions that incurred the
expenses. Thus, if a multi-jurisdictional board operates the facility, fees must be
allocated among the political subdivisions in the same proportion as they incurred
the expenses.
• If a local correctionaf facility operates a commissary they must establish a
commissary fund. Revenue in the commissary fund must be managed in
accordance with procedures promulgated by the Auditor of State's Office. (A
subsequent CAB will be sent out regarding the bfil's provisions on
commissaries and commissary funds).
• Any fees collected must be deducted from a prisoner's total medical expenses. For
example, if a prisoner visits the doctor once for a total cost of $50 and the facility
charges and collects a $5 fee from the prisoner for the visit; then the facility can only
seek $45 in reimbursement from the prisoner once they are released.
SHOUL[? YOUR COUNTY CHARGE MEDICAL FEES?
The medical fee mechanism should be implemented by every local correctional facility.
In addition to collecting revenue, charging non-indigent prisoners a fee for medical care
and prescriptions will decrease frivolous visits by inmales and should decrease medical
expenses. If you implement a fee policy then two questions will likely be asked; what is a
non-indigent offender and what is a reasonable fee? A non-indigent prisoner in the context
of the fee mechanism is a prisoner that has funds in his or her commissary account. Thus,
if there is money in a prisoner's account it is fair game. A reasonable fee can vary,
however, most local correctional facilities around the state have been charging between
$3 to $10 for medical and dental care and prescriptions.
SHOULD YOUR COUNTY IMPLEMENT A REIMBURSEMENT PROGRAM?
Although there are many successful prisoner reimbursement programs around the country
they can be misleading due to demographics and available resources including the number
of employees and the technology being utilized. Thus, making the decision to implement
a prisoner reimbursement program may not be simple. Please see "MACOMB COUNTY,
MICHIGAN A PLAN THAT WORKS" in the back for a summary of the reimbursement
program in Macomb County, Michigan.
Note before your county chooses to implement a reimbursement program it is a good idea
to first meet with the judges of the courts of common pleas, municipal and county courts
to communicate your intentions. As stated previously, if your judges are requiring
7
reimbursement under the judicial method and your county jail is requiring reimbursement
via the "in lieu of" method the mechanisms will conflict. Meeting with the judges should
minimize the possibility of reimbursement mechanisms conflicting.
WHICH REIMBURSEMENT MECHANISM SHOULD BE IMPLEMENTED?
Once your county has decided to implement a reimbursement program which method
should be utilized? We feel the "in Iieu of" mechanism will work best for most counties.
The remainder of this CAB focuses on similarities and differences between the
reimbursement methods that you should know before deciding on a program; why the "in
lieu of" reimbursement method will likely work best for you; and how your county may want
to implement such a program.
Simitarities between the mechanisms
• Once a judgment is made against an offender to reimburse the costs of
confinement or the offender is given a billing statement, the reimbursement
mechanisms operate very similar in terms of colfection. For example a court can
appoint a collection officer or private vendor and a local correctional facility can
appoint a reimbursement coordinator or contract with a private vendor. Both
mechanisms also allow civil actions or procedures such as garnishment of wages.
Differences between the mechanisms
• The judicial method requires courts to sentence a felony offender to the
reimbursement sanction at the time of sentencing, while the amount a misdemeanor
offender pays is decided at a post-confinement hearing. The "in lieu of" method
requires the local correctional facility to issue all offenders, whether felony or
misdemeanor offenders, a billing statement at the time of their release. Using the
judicial method for misdemeanor offenders could require thousands of extra
hearings to be held in municipal and county courts which would prove time
consuming and costly. In comparison, the "in lieu of" method may require some
technological updates and additional paperwork by the correctional facility.
• The judicial method may potentially be used as a condition of probation whereas the
"in lieu of" method is strictly civil in nature. However, putting an offender back in jail
for failing to meet their conditions of probation would likely increase costs even
more.
The judicial method limits the amount of recoverable medical expenses from
misdemeanor offenders to 40% of total costs and limits the amount of all financial
sanctions to $10,000 for felony offenders. The "in lieu of" method limits the amount
of recoverable expenses for room and board to $60 per day.
The judicial method allows you to charge offenders up to two hours of overtime for
the costs incurred by the sheriff relative to ihe offender's trial. The "in lieu of"
method does not have a specific provision relative to the reimbursement of sheriff
overtime.
• The "in lieu of" method allows you to charge offenders for damages to government
property while they are confined. The judicial method does not have a specific
provision relative to the reimbursement of damages.
• The judicial method requires revenue collected trom felony offenders to be
deposited into the county "sanction cost reimbursement fund" while revenue
collected from misdemeanor offenders is deposited into general revenue funds. All
revenue collected under the "in lieu of" method is deposited into general revenue
funds.
Please see "EXAMPLE 1" in the back for a summary of how the two prisoner
reimbursement mechanisms might work on a specific inmate.
The 'in iieu of" mechanism will tikei work best for ou
Most offenders will not be able to pay for their total confinement cost, thus, the differences
between the programs in regard to collectible expenses will not matter much. However,
we believe the'"in lieu of" method is the most cost effective method to seek reimbursement
from offenders. The post-confinement hearing for misdemeanors as required under the
judicial method will prove costly and time consuming, as if would increase judges' dockets.
In addition, the local correctional facility still has to come up with a billing statement under
the judicial method. The "in lieu of" method takes a sfep out of the process by avoiding a
court hearing.
Shouid ou im iement the " in•fieu of" ro ram in-house or contract out
The answer to this question really depends on the demographic make-up of your county
and the resources you have. For example, if there is a low unemployment rate in your
county it is more likely that your
revenues may exceed the costs of operating a
reimbursement program in-house, On the other hand, if most of your offenders are
unemployed then the costs of operating an in-house program may exceed revenues. If you
are not sure whether such a program would be successful, the safest way to implement a
program would be to contract it out. Although private vendors generally keep between 25%
to 50% of the revenue collected, your county should not incur any significant costs.
However, the most successful programs around the country generally have both an inhouse program (one to three full-time employees) and contract with private vendor(s). Inhouse programs are used to collect from offenders that are making payments while private
vendors are used to collect on dead accounts. The benefit of having at least a small inhouse program, such as having a reimbursement coordinator, is that records from other
9
county departments may be utilized by the coordinator to find offenders who are delinquent
on their payments. Private vendors generally will not have access to other county
departments. Also a coordinator may have the opportunity to talk with the offenders before
they leave and get information that will help collect revenue later. Please see "MACOMB
COUNTY, MICHIGAN A PLAN THAT WORKS" in the back for a summary of the
reimbursement program in Macomb County, Michigan.
ACKNOWLEDGEMENT
CCAO would like to thank Robert Cornwell, Executive Director, Buckeye State Sheriffs'
Association; Janet Gross, Legislative Liaison, Ohio Judicial Conference; and Harry
Hageman, Administrator, Bureau of Adult Detention for their help with this builetin,
If you have any questions regarding pay-for-stay or other provisions of Sub. H.B. 480,
please contact Mike Toman, CCAO Research Associate at (614) 221 •5627.
10
EXAMPLE 1: REIMBURSEMENT MECHANISMS AT WORK
Name: Joe Inmate Days Served: 10 days
Per Diem Rate: $50 Crime: Misdemeanor
Incarceration Costs: $500 (10 days x $50 per diem)
Medical Expenses: $100
(Joe went to. the doctor once and had one prescription
filled)
Damages: $50
(Joe scratched his name all over his cell, it needs a new coat of
paint)
Sheriff Overtime: $100
(4 hours of overtime at $25 per hour for the Sheriff to take Joe
to trial)
Total Costs of Joe's Stay: $750
COMPARING REIMBURSEMENT MECHANISMS
Judicial
Subject I Mechanism
Reimbursement
Procedure
Room & Board
Expenses
Medical
Expenses'
At the time of sentencing for felony
offenders and at a post confinement
judicial hearing for misdemeanor
offenders
Actual costs of
confinement not
$500
to exceed
$10,000 for
felony offenders
Actual costs for
felons; can not
exceed 40% of
Costs for
misdemeanants
Damages to
Property
•,Joe" I tn L i eu of
Under Judiciat
Judicial
Mechanism
Mechanism
No specific
provisions
relative to
damages
"Joe•,
In Lieu of
Judicial
Mechanism
Post confinement administrative
procedure via coordinator or other
designee of local correctional
facility
A maximum
$60 per diern $500
fee or actual
costs
whichever is
less
$40 minus any
medical fees
already deducted
from commissary
account
May be able to
charge as part of
room & board
expenses
11
$100 minus
Actual costs any medical
fees already
deducted from
commissary
account
Actual costs 1 $50
Sheriff
Overtime
Up to two hours
may be
recovered
Disposition of
Recovered
Expenses
No specific
provisions
relative to
overtime
$50
May be able to
charge as part
of room &
board
expenses
Revenue collected from felony
offenders goes to the county "sanction
cost reimbursement fund"; revenue
recovered from misdemeanor
offenders go to GRFs
Revenue recovered from felony
and misdemeanor offenders go to
GRFs
$590
$650
Total Collectible
Expenses: $750
Medical fees can be collected under both mechanisms. For example a correctional
facility might charge Joe's commissary account a $5 medical fee for his doctor visit and a
$3 medical fee for his prescription.
EXAMPLE 2: SLIDING SCALES FOR PRISONER
REIMBURSEMENT
The tables below provide examples of sliding scales based on an offender's hourty wage
and a $50 per diem rate for incarceration costs. The first example is a sliding scale that
might be utilized for offenders serving a regular jail term while the second example is a
sliding scale that might be utilized for offenders in a work release program. Note these are
just examples, your county may adopt sliding scales with higher daily rates.
Scale 1
Inmate's
Hourly Wage
Min. Wage - $6.51
I Or
Scale 2
Inmate's
Hourly Wage
Daily Rate
( $6.00
Min. Wage . $6 . 51
Daily Rate
$12 . 00
$6.51 - $7.50
7.00
$7.50
1 $14.00
$7.51 - $8.50
$8:00
7.51 - $8 . 50
1516 . 00
8.51 - $9.50
$9.00
8.51-$9.50
1$18.00
.51 - $10.50
$10.00
$9.51 - $10 . 50
1 $20 _ 00
45.51 - $46-50
46.00
20.51 - $21.50
1 $42.00
6.51 - $47.50
$47.00
$21.51 - $22.50
1 $44.00
47.51 - $48.50
$48.00
$22.51 - $23.50
1 $46.00
$48.51 - $49.50
$49.00
49.51 - $50.50
$50.00
^
$23.51 - $24.50^_ $48.00
$24.51 - $25.50
12
$50.00
13
MACOMB COUNTY, MICHIGAN A PLAN THAT WORKS:
Sub. N.B. 480 was largely modeled after Michigan's laws on pay-for-stay. One reason for
copying Michigan's pay-for-stay laws can be attributed to the success of pay-for-stay in
Macomb County, Michigan (Population--720,000). The Macomb County pay-for-stay
program has been one of the most successful programs in Michigan as well as in the
United States. Macomb County operates a program almost identical to the "in lieu of"
mechanism available to counties in Ohio. Macomb County began their pay-for-stay
program in 1985 and has since collected over $5 million in prisoner reimbursement
revenue. In 1996, Macomb County collected approximately $900,000. Note Macomb
County also charges a $10 fee for each doctor or dental visit and a $3 fee for prescriptions.
The fees are deducted from the offender's commissary accounts. The revenue from fees
collected for medical treatments and service is included in the $900,000 figure.
Why has Macomb County been successful?
A great deal of Macomb County's success can be attributed to the demographics of the
county. Macomb County is located northeast of Detroit. Many automobile manufacturers
are located in the county region. The socioeconomic status of the neighboring counties,
Wayne and Oakland, range from being one of the poorest in Michigan to one of the
wealthiest in the United States, with Macomb County faNing somewhere in between. The
Macomb County Jail has an average daily population of 1,200 offenders. Of the 1,200
offenders, approximately 80 offenders are in their work release program. The work release
program releases offenders during the day so that they may report to their jobs. These are
jobs that the offenders had prior to being adjudicated. Macomb County is in the process
of constructing another 200 bed facility for the work release program. Macomb County also
operates a weekend program for approximately 20 offenders. Offenders in the weekend
program are employed during the week and are incarcerated on the weekend. Thus, a
great number of the offenders being sentenced to the Macomb County Jail are employed.
Offenders in the work-release and weekend programs are charged twice as much as the
other offenders serving normal jail time. The offenders' rates are based on a sliding scale
and they must pay their rates or they are taken off the program and required to serve a
normal jail term. Of the $900,000 collected in 1996, over
5D'/, was collected from offenders
in the work-release and weekend programs.
The other reason for Macomb County's success is an aggressive reimbursement staff.
Macomb County hired a reimbursement coordinator in 1984 on a six month contract with
no benefits. in 1984 the jail's average daily population was only 400 inmates. The
program lost money the first year but showed promise. Today the program staff consists
of three employees with an annual operation cost of $150,000. The staff completes a
financial survey on every offender sentenced to jail, utilizes the records of other county
departments to find offenders that havedelinquent accounts, and turns overdead accounts
and outside hospital expenses directly to four private vendors for collection. Upon release,
the county sends out a billing statement within one month. The county generally places
offender's on a weekly payment plan based on their ability to pay. The county sends out
700 billing statements a month and files an estimated 230 civil actions annually. If a civil
action is filed and the county gets a judgment they garnish wages, place liens on vehicles,
14
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TITLE 3. COUNTIES
CHAPTER 34l. JAILS
MISCELLANEOUS
Go to the Ohio Code Archive Direetorv
ORCAnn.341.19 (2010)
§ 341.19. Reimbursement of county by prisoner; testing and treatment for certain diseases
(A) Pursuant to secrion 2929.37 qjdee Revised Code, the board of counry commissioners may require a person who
was convicted of an offense and who is confined in the county jail to reimburse the county for its expenses incurred by
reason of the person's confinentent.
(B) Notwithstanding any contrary provision in this section or section 2929.18, 2929.28, or 2929.37 ofrfae Revised
Code, the board of county cominissioners may estabiislt a policy that complies with section 2929,38 ojthe Revised
Code and that requires any prisoner who is not indigent and w•ho is confined in the county's jail under this section to pay
a reception fee, a fee for any medical treatment or service requested by andprovided to that prfsoner, or the fee for a
random drug test assessed under division (E) of section 341.26 of the Revised Code.
(C) If a person who is convicted of or pleads guilty to an offense is sentenced to a term in a jail, or if a person who
has been arrested for an offense, and wlto has been denied bail or has had bail set and has not been released on bail is
confined in jail pending trial, at the time of reception and at other times the sheriff or other person in charge of the operation of the jail determines to be appropriate, the sheriff or other person in charge of the operation of the jail may
cause the convicted or accused offender to be examined and tested for tuberculosis, Hl V infection, hepatitis, including
but not lin»ted to hepatitis A, B. and C, and other contagious diseases. 7'he sheriff or other person in charge of the operation of the jail ntay cause a convicted or accused offender in the jail who refu3es to be tested or treated for tuberculosis, HI V infection, hepatitis, including but not limited to hepatitis A, B, and C, or another contagious disease to be tested
and treated involuntarily.
HISTORY:
RS § 7378; S&C 747; 41 v 74, § 10; 87 v 186; GC § 3177; Bureau of Code Revision, 10-1-53; 131 v 230 (Eff 9-665); 140 v H 363 (Eff 9-26-84); 146 v S 2(Eff 7-1-96); 146 v S 269 (Eff 7-1-96); 146 v H 480 (Eff 10-16-96); 147 v S
III (Eff 3-17-98); 149 v H 170. Eff 9-6-2002; 149 v H 490, § l, etf. 1-1-04.
NOTES:
ORC Ann. 341.19
Page 4
Section Notes
The effective date is set by section 4 of HS 490.
Related Statutes & Rules
Cross-References to Related Statutes
Allowance to sheriff for prisoners, RC § 311,20.
Hcaring to determine convicted person"s ability to pay reitnbursement for expenses of conOnement, RQ 2919./S.
Prisoner reimbursement policy; coordinator; medical treatment or service, RC§ 341.06.
Reimbursentent for costs of conGnement for an offense other than a minor naisdenicanor, RC,¢ 2929.12.3.
Paue I
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All rights reserved.
*** CURRENT THROUGH LEGISLATION PASSED BY THE 128TH OHIO GENERAL ASSEMBLY AND FILED
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•** ANNOTATIONS CURRENT THROUGH JULY 1, 2010 ***
*** OPINIONS OF ATTORNEY GENERAL CURRENT THROUGH JULY I, 2010 ***
TITLE 29. CRIMES -- PROCEDURE
CHAPTER 2929. PENALTIES AND SENTENCING
REIMBURSEMENT OF COSTS OF CONFINEMENT IN LOCAL DETENTION FACILITY
Go to the Ohio Code Archive Directorv
oRCtfnp. 2929.37 (2010)
§ 2929.37. Policy requiring prisoner to pay costs of confinernent
(A) A board of county commissioners, in an agreement with the sheriff, a legislative authority of a municipal corporation, a corrections comntission, a facility governing board, or any othe public or private entity that operates a local detention facility at which a,tuisoner who i ennvicted gf 1n o(fense and who ic confi ed jLt the a sanction or
term of imprisonment imposed
er sectionund
2929.16, sections 2929.21 to 2929.28, or any other provision of the Revised Code ntay adopt, pursuant to sectiott 307.93, ?at 14 a47 14 ?a l? 7 ?Ql 11 753.02, 753,04, 753.16, 2301.56, or
2947.19 of the Revised Code, a policy that requires the prisoner to pay all or part of the costs of confinement in that facility. If a board of county commissioners, legislative authority, corrections commission, facility goveming board, or
other entity adopts a policy for a facility pursuant to one of those sections, the person in charge of that facility shall appoint a reimbursement coordinator to administer the facility's policy.
The costs of confinement may include, but are not limited to, the costs of repairing property damaged by the prisoner while confined, a per diem fee for room and board, ntedical and dental treatment costs, the fee for a random drug
test assessed under division (E) of section 341,26 and division (E) of section 753.33 of the Revised Code, and a one-time
reception fee for the costs of processing the prisoner into the facility at the tin e of the prisoncr's initial entry into the
facility under the confinement in question, tninus any fecs deducted undersectiort 2929.38 oftfre Revised Code. Any
policy adopted under this section shall be used when a court does not order reimbursenient of confinement costs under
sectioat 2929.18 or 2929.28 ofthe Revised Code. The amount assessed under this section shall rtot exceed the total
antount that the prisoner is able to pay.
(B) (1) Each prisoner covered by a repayment policy adopted as described in division (A) of titis section shall receivc at the end ol'the prisoner's confinement an itemized bill of the expenses to be reimbursed. The policy shall allow
periodic payrnents on a schedule to be implemented upon a prisoner's release. The bill also shall state that payment shall
be made to the person identified in the bill as the reimbursernent coordinator and include a notice that specifies that the
prisoner has thirty days in which to dispute the bill by filing a written objection with the reimbursement coordinator and
that if the prisoner does not dispute the bill in that nianner within that period, the prisoner is required to pay the bill and
a certificate ofjudgment may be obtained against the prisoner for the amount of the unpaid expenses. Ttre prisoner shall
sign a copy of thc bill, and the reimbursement coordinator shall retain that copy. If the prisoner disputes an item on the
Page 2
ORC Ann. 2929.37
bill within thirty days after receiving the bill, the reimbursement coordinator may cilher concede the disputed item or
proceed to a hearing under division (B) (2) of this section.
(2) If the prisoner disputes an item on an iteniized bill presented to the prisoner under division (B) (1) of this section and the reintbursement coordinator does not concede the item, the reitnbursement coordinator shall submit ihe bill
to the court, and the court shall hold a hearing on the disputed items in the bill. At the cnd of the hearing, the court shall
determine how much of the disputed expcnses the prisoner shall reiniburse the legislative authority or managing authority and shall issue a judgment in favor of the legislative authorit,v or managing authority for any undisputed expenses
and the amount of the disputed expenses for which the prisoner must reimburse the legislative authority or managing
authority. The reimbursement coordinator shall not seek to enforce thejudgnicnt until at least ninety days after the court
issues the judgntent.
(C) If a prisoner does not dispute the itemized bill presented to the prisoner under division (B) of this section and
does not pay the bill within ninety days, the reimbursement coordinator shall send by mail a notice to the prisoner requesting payment of the expenses as stated in the bill. If the prisoner does not respond to the notice by paying the expenses in fitll within ihirty days of the date the noticc was mailed, the reimbursement coordinator shall send by mail a
second notice to the prisoner requesting payment of the expenses. If'one hundred eighty days clapse from the date tttat
the reimbursement coordinator provides the bill and if the prisoner has not paid the full amouat of the expenses pursuant
to the bill and the notices, the reimbursement coordinator may notify the clerk of the appropriate court of those facts,
and the clerk may issue a certificate ofjudgment against the prisoner for the balance of the cxpenses remaining unpaid.
(D) The reimbursement coordinator may collect any amounts remaining unpaid on an itemized bill and any costs
associated with the enforcement of thejudgment and may enter into a contract with one or more public agencies or private vendors to collect any amounts remaining unpaid. For enforcing a judgment issued under this section, the reimbursement coordinator ntay assess an additional poundage fee of two per cent of the amount remaining unpaid and may
collect costs associated with the enforecment of the judgment.
(E) Neither the reirnbursement coordinator nor the legislative authority or the managing autiiority shall enforce any
judgment obtained under this section by means of execution against the prisoner s homestead. Any reimbursement received under this section shall be credited to the general fund of the treasury of the political subdivision that incurred
the expense, to be used for general fund purposes.
HISTORY:
149 v H 170. Eff9-6-2002; 149 v H 490, § 1, eff. 1-1-04; 151 v H 162, § 1, eff. 10-12-06.
NOTES:
Section Notes
The effective date is set by section 4 of HB 490.
EFFECT OF AMENDMENTS
151 v H 162, effective October 12, 2006, in the first paragraph of (A), substituted "facility governing" for' judicial
corrections" twice.
Case Notes & OAGs
CONFINEMENT PRIOR TO COMMENCEMENT OF SENTENCE.
A board of county commissioners is not authorized by R.C. 307.93(fJ) or R.C. 2929.37(A) to adopt a policy that requires a convicted offender serving in a local detention facility to repay the county for the costs it incurred as a result of
his confinement in the facility prior to the comtnencement of his sentence. Opinion No, 2005-01$(2005).
Page 3
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*** CURRENT TNROUGH LEGISLATION PASSED BY THE 128TH OHIO GENERAL ASSEMBLY AND FILED
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*** ANNOTATIONS CURRENT THROUGH JULY I. 2010 ***
*** OPINIONS OF ATTORNEY GENERAL CURRENT THROUGH JULY 1, 2010 ***
TITLE 29. CRIMES -- PROCEDURE
CHAPTER 2929. PENALTIES AND SENTENCING
REIMBURSEMENT OF COSTS OF CONFINEMENT IN LOCAL DETENTION FACILITY
Go to the Ohio Code Archive Directory
ORC Atua. 2929.38 (2010)
§ 2929,38, [1n>-r;,,,e x-cptina fee- fees for medical treatment or service and randont dmg test
(A) g hnnrri nfrnmmiccinnerc nf a countv in an yreen7ent witb the sheriff, a legislative authority of a municipal corporation, a corrections commission, a facility govetning board, or any other public or pdvate entity that operates a local
detention facility described in division (A) of secrion 2929.37 ofdee Revised Code, ntay establish a policy that requires
nil
^.+t... +ntn the faril'tv t,n^he nnfin m^nt in m estinn to pay a reasonable fee for any medical or dental treatment or
service requested by and provided to that prisoner, and to pay the fee for a random drug test assessed under division (E)
of section 341.26, and division (E) of secrion 753.33 oftlm Revised Code. The fee for the medical treatment or service
shall not exceed the actual cost of the treatment or service provided. No prisoner confined in the local detention facility
shall be denied any necessary medical care because of inability to pay the fees.
(8) Upon assessment of a one-tinte reception fee as described in division (A) of this section, the provision of the
requested medical treatment or service, or the assessment of a fee for a random drug test, paynient of the required fce
tnay be autonratically deducted from the prisoner's inmate account in the business oftice of the local detention facility in
which the prisoner is confined. If there is no money in the account, a deduction may bc made at a later date during thc
prisonee s confinement if the ntoney becomes available in the account. If, afier release, the prisoner has an unpaid balance of those fees, the sheriff, legislative authority of the municipal corporation, corrections coninrission, facility goveming board, or other entity that operates the local detention facility described in division (A) of section 2929.37 of7he
Revised Code may bill the prisoner for the payment of the unpaid fees. Fees received for medical or dental treatment or
services shall be paid to the commissary fund or resident program fund of a community-based correctional facility, if
one exists for the facility, or if no commissary fund or resident program fund exists, to the general fund of the treasury
of the political subdivision that incurred the expenses, in the same proportion as those expenses were borne by thc political subdivision. Fees received for medical treatment or services that are placed in the commissary fund or resident
program fund under this division shall be used for the same purposes as profits from the commissary fund or resident
progratn fund, except that they shall not be used to pay any salary or benefits of any peson who works in or is employed for the sole purpose of providing service to the commissary.
Page 4
ORC Ann. 2929.38
(C) Any fee paid by a person under this section shall be deducted from any niedical or dental costs that the person
is ordered to reimburse under a financial sanction intposed pursuant to sectiort 2929.28 of the Revised Code or to repay
under a policy adopted under section 2919.37 ojttre Revised Cr3de.
(D) As used in this section, "inmate account" has thc same meaning as in seetinn 2969.21 of dre Revised Code.
t11STORY:
149 v H 170. Eff 9-6-2002; 150 v H 95, § 1, ef7: 9-26-03; 149 v H 490, § 1, eff. 1-1-04; 150 v 1195, § 3.13, eff. 11-04; 151 v H 162, § 1, eff. 10-12-06.
NOTES:
Section Notes
The effective date is set by section 3.13 of HB 95.
EFFECT OF AMENDMENTS
151 v H 162, effective October 12, 2006, substituted "facility governing" for' judicial corrections" in (A) and (B);
in (B), inserted "or resident program fund" four times and "of a contmunity-based correctional facility".