Mental health care in the Bureau of Prisons

By Alan Ellis and Mark Allenbaugh

U.S. Bureau of Prisons (BOP) policies are complex and difficult to understand—even defense lawyers find them taxing particularly so when it comes to medical and mental health issues. Clients and families are more often than not lost in the bureaucratic maze of terminology and regulations, and they turn to their lawyers for explanations.

In earlier columns, “BOP Designations Based on Medical Need,” Criminal Justice (Fall 2008) and “BOP Healthcare: What You (and Your Clients) Need to Know,” Criminal Justice (Winter 2009), I discussed medical care in the Bureau of Prisons. This article is intended for the attorney to understand and be able to provide his clients and their families and friends information regarding mental health treatment in the BOP.

For a number of years, the Bureau of Prisons has classified inmates based on their medical needs. There are four levels of medical care classification. Recently, the BOP has adopted mental health classifications. In addition to receiving a classification for security and healthcare, BOP inmates are now classified based on mental health care need. Similar to the four medical care levels, all inmates are assigned to one of four mental health levels.

CARE1-MH: No Significant Mental Health Care: those who show no significant level of functional impairment associated with mental illness and demonstrate no need for regular mental health interventions; and either has no history of serious functional impairment due to mental illness or if a history of mental illness is present, have consistently demonstrated appropriate help-seeking behavior in response to any reemergence of symptoms.

CARE2-MH: Routine Outpatient Mental Health Care or Crisis-Oriented Mental Health Care: those requiring routine outpatient mental health care on an ongoing basis; and/or brief, crisis-oriented mental health care of significant intensity; e.g., placement on suicide watch or behavioral observation status.

CARE3-MH: Enhanced Outpatient Mental Health Care or Residential Mental Health Care: those requiring enhanced outpatient mental health care (i.e., weekly mental health interventions); or residential mental health care (i.e., placement in a residential Psychology Treatment Program).

CARE4-MH: Inpatient Psychiatric Care: those who are gravely disabled and cannot function in general population in a CARE3-MH environment. In determining an appropriate mental health care level, an individual’s current, recent, and historical need for services is considered, along with consideration of any type of psychotropic medication required. The BOP offers a number of formal, organized psychology treatment programs with specific target populations, admission criteria, and treatment modalities. Many of these are residential programs offered only at select facilities. General psychological services and mental health crisis intervention are available throughout the BOP. Psychiatric services, including psychotropic medication, are generally coordinated through health services in conjunction with psychology services staff. Psychiatry services may be available either through contracts with a community psychiatrist, or increasingly, through telepsychiatry with a BOP psychiatrist at another location.

DESIGNATION AND LEVEL OF CARE SCORING
When initially scoring an inmate, the assigned team utilizes a Medical Calculator to determine the screen level. If the inmate is scored as a SCRN3 or SCRN4, he/she will be referred to the Office of Medical Designations (OMDT) for further review. OMDT then decides whether the SCRN level will require further review of the available information. If the inmate comes back from OMDT as a SCRN1 or SCRN2, the latter will be referred back to Designators who will designate the inmate to an appropriate CARE1 or CARE2 facility. If the inmate is determined
to meet the criteria for a CARE3 or CARE4 facility, OMDT will designate them.

A provisional CARE level is assigned by the Designations and Sentence Computation Center (DSCC) based primarily on information contained in the Presentence Investigation Report. After arriving at the designated facility, the provisional CARE level is reviewed by BOP clinicians and a non-provisional CARE level is assigned. These assignments depend on the defendant’s physical, medical and mental condition, clinical resources and inmate needs and his or her ability to function daily without assistance.

While it may vary from institution to institution and from mental health professional to mental health professional, generally speaking mental health treatment in the Bureau of Prisons is designed to enable the inmate to function within the prison system, for example, not a danger to self, staff or other inmates. Outside of the formal programs mentioned above, rarely will an inmate receive any meaningful treatment for underlying disorders such as PTSD, Major Depressive Disorder, Bi-Polar Disorder, and the like, as all treatment modalities are not offered, for example, EMDR (Eye Movement Desensitization and Reprocessing) for treatment of PTSD.

This is regrettable. Department of Justice estimates are that one in four inmates in this country suffers from a diagnosable mental health disorder. With the Bureau’s emphasis on reducing recidivism, more attention given to the mentally ill will go a long way to achieving this result.

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Alan Ellis, a past president of the National Association of Criminal Defense Lawyers and Fulbright Award winner, is a criminal defense lawyer with offices in San Francisco and New York. Mr. Ellis has 50 years of experience as a practicing lawyer, law professor and federal law clerk. He is a nationally recognized authority in the fields of federal plea bargaining, sentencing, prison matters, appeals, habeas corpus 2255 motions and international prisoner transfer for foreign inmates. Mr. Ellis has successfully represented federal criminal defendants and inmates throughout the United States. He is a sought-after lecturer in criminal law education programs and is widely published in the areas of federal sentencing, Bureau of Prisons matters, appeals and other post-conviction remedies, with more than 120 articles and books and 70 lectures, presentation and speaking engagements to his credit. He can be reached at AELaw1@alanellis.com.
Mark H. Allenbaugh is co-founder of Sentencing Stats, LLC (www.sentencingstats.com), a consulting firm focused on analysis of federal sentencing data for attorneys and their clients. He is a consultant to the Law Offices of Alan Ellis. Prior to entering private practice, he served as a staff attorney for the U.S. Sentencing Commission. He is a co-editor of Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice (2nd ed., Foundation Press, 2002). He can be reached at mark@sentencingstats.com.

Healthcare Talking Points

As the Supreme Court considers the constitutionality of President Obama’s health-care reform, the Patient Protection and Affordable Care Act of 2010, there are some important points to remember.  The case has been polarizing for the United States: it would provide health insurance to some 32 million Americans lacking coverage, a major social accomplishment for some, but also would force people to buy insurance — an intrusion into civil liberties for others.

 

Here are four important things to keep in mind as the court weighs the case:

1 – The court may put off ruling on the case until 2014.

  • During the first day of oral arguments, the justices will consider if the federal Anti-Injunction Act prevents them from deciding the case before the federal mandate takes effect in 2014.
  • The Anti-Injunction Act, passed 1867, strips the court of the ability to rule on the constitutionality of a tax before that tax has been paid. The court will have to decide if the individual mandate is essentially a tax.

2 – Conservatives argue the law is “slippery slope” to broccoli mandates.

  • On Tuesday, the court is expected to listen to arguments that if the government can force people to buy insurance then it can also force them to do other things like buy health foods or buy GM cars.
  • Florida’s Republican Attorney General Pam Bondi and others have insisted that if the Affordable Care Act’s individual mandate is allowed to stand then the government could eventually also require people to “buy and consume broccoli at regular intervals” because it would positively impact interstate commerce by making consumers healthier.
  • Others, like President’s Ronald Reagan’s former Solicitor General Charles Fried, say this slippery slope argument is “totally bogus” because the government isn’t forcing people into a market that they are not already in.
  • Acting U.S. Solicitor General Neal Katyal told AFP that striking down the individual mandate, which forces Americans to purchase health insurance, would be a “grave and profound” decision.

“If the Supreme Court struck this down, I think that it wouldn’t just be about health care,” Katyal explained. “It would be the Supreme Court saying: ‘Look, we’ve got the power to really take decisions, move them off of the table of the American people, even in a democracy. And so it could imperil a number of reforms in the New Deal that are designed to help people against big corporations and against, indeed, big governments. The challengers are saying that this law is unconstitutional, which means even if 95 percent of Americans want this law, they can’t have it. And that’s a really profound thing for an unelected court to say.”

3 – Unpopularity of health care law unlikely to effect the decision.

  • According to a recent New York Times survey, President Barack Obama’s Affordable Care Act continues to be unpopular with the public, 47-38.
  • The Washington Post‘s Robert Barns noted last week that public opinion was unlikely to sway the conservative-leaning court one way or the other.

“The court has shown it is unafraid to buck public opinion to protect constitutional principles, particularly in free-speech cases,” Barns wrote.

4 – Experts expect law to be upheld.

  • A recent survey of former Supreme Court clerks and lawyers who have argued before the court found that over 50 percent expect the individual mandate to be upheld. Only 35 percent thought it would be struck down.

“I don’t think this case will be nearly as close a case as conventional wisdom now has it,” one responded replied. “I think the Court will uphold the statute by a lopsided majority.”

  • If the court does decide that the individual mandate is unconstitutional, only 27 percent thought they they would also strike down the entire law.