June 19, 2007
TYRONE P. HODGES, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 14, 2007
Before Judges Stern and Sabatino.
Tyrone Hodges appeals from a final administrative determination of the Department of Corrections ("DOC"), dated March 28, 2006, upholding a reduction in a commissary sales order resulting from insufficient funds in his prison trust fund account due to deductions for medical and pharmacy expenses. He asserts that the provision of the Administrative Code permitting the Business Manager to withdraw moneys below the minimum balance of $15 to pay for medicine and prescription drugs is unconstitutional and seeks the return of the withdrawn funds.
Appellant filed a "Request System & Remedy Form" on March 20, 2006, requesting that the funds be returned to his account. The request was denied, as was a second request, and he now appeals to us.*fn1 Appellant claims he could not make purchases from the commissary because of the unauthorized withdrawals. He asserts on the appeal, as he did before the agency, that "[a]s a chronic care inmate, there should never have been any loan for medical costs since my account would have less than $15 each time a loan was supplied and repaid." He further contends that "the final decision of the [DOC] should be reversed because it violates his right to be free from excessive charges to his inmate account making him wholly indigent."
There is no dispute as to most of the facts developed in appellant's brief. At the relevant times, appellant was incarcerated at Riverfront State Prison in Camden. He earned a daily salary of $1.30 (approximately $40 a month) from employment within the prison, which was deposited in his inmate trust fund account.
Appellant suffers from epilepsy, type I diabetes, and atopic dermatitis, and has degenerative joint disease in his back and left knee. As a result, he takes a number of prescription medications and classifies himself as a "chronic care" inmate, which would exclude his co-payment obligation. Before us, the DOC objects to that classification, which would relieve appellant from having to make medical co-payments, contending that
[w]hile [appellant] apparently requires care when he suffers a seizure, and he has no control over when he has a seizure, his visits are, in fact, inmate-initiated, and none of the noted exceptions, which include prescribed ongoing treatment and staff-initiated visits to comply with internal management procedures, apply to [appellant].
The DOC also asserts "Hodges is not an indigent inmate" and is therefore not excused from making medical co-payments.
There is no indication in the record as to the reasons for appellant's medical visits and whether they are involuntary, i.e., the result of seizures or other ailments. The only record before us regarding the visits are notations of withdrawals from appellant's prison account and loans, apparently related to treatment and prescriptions. It is therefore unclear to us if there were non-inmate-initiated visits in addition to those for which appellant was charged a co-pay.
Appellant's "Trust Account Statement" for the period of October 13, 2005 through March 13, 2006 contained a certification, dated March 13, 2006, that appellant "ha[d] the sum of $0.00 on deposit in his trust account as of his last posting. . . . [and] during the last six months, the total funds deposited in the inmate's account was $167.70." The statement, which covered six months of account activity, shows that funds were taken from appellant's account for "medical/dental co-pay[s]," "pharmacy co-pay[s]," repayment of medical loans, repayment of pharmacy loans, pharmacy and medical deductions, court fines, and commissary sales. Appellant's account was drawn below $15 on numerous occasions by medical/dental co-payments, pharmacy co-payments, and a commissary loan repayment. Many of the medical and pharmacy payments were preceded by loans from the DOC in order to enable the co-payments.
N.J.S.A. 30:7E-2(a) provides that "[a]n inmate shall be liable for the cost of, and be charged a nominal fee for, any medical care, surgery, dental care, hospitalization or treatment provided to the inmate during the inmate's term of incarceration or detention . . . ." The State Treasurer is authorized to determine "the amount due and payable and the nominal fees charged" for inmates in "State correctional facilit[ies]" "in accordance with guidelines promulgated by the commissioner."
Id.; see also N.J.S.A. 30:7E-6 (providing for rulemaking). As part of the Act creating N.J.S.A. 30:7E-2,*fn2 N.J.S.A. 30:4-92 was amended to provide the following concerning funds earned while imprisoned:
From moneys paid to inmates of correctional institutions, the superintendent of the institution shall withdraw sufficient moneys in an amount not to exceed one-third of the inmate's total income, as may be required to pay any assessment, restitution or fine ordered as part of any sentence, and is authorized to withdraw from the remainder of the inmate's total income an amount not to exceed one-third of the total income as may be required to pay costs and fees charged or owing, pursuant to section 2 of P.L. 1995, c. 254
[L. 1995, c. 254, § 10 (effective March 1, 1996) (emphasis added).]
N.J.A.C. 10A:16-1.5 was adopted to implement the statutory requirements. 31 N.J.R. 2531(a) (Sept. 7, 1999) (rule proposal); 31 N.J.R. 4045(b) (Dec. 6, 1999) (rule adoption). The rule sets the "medical co-payment" at $5 and "medication co-payment" at $1, N.J.A.C. 10A:16-1.5(a), and provides that "medical services" and "medication" may not be denied to inmates who are unable to pay the co-payment fee, N.J.A.C. 10A:16-1.5(b). It further specifies that deductions be made in accordance with N.J.A.C. 10A:2-2.2 and enumerates a list of "services  excluded from the co-payment requirement."
N.J.A.C. 10A:1.5(c), (d).
As it currently reads, N.J.A.C. 10A:2-2.2 only limits the amount of money that can be deducted from "indigent inmates'" accounts for medical expenses and other enumerated assessments and costs. N.J.A.C. 10A:2-2.2(h); see also N.J.A.C. 10A:2-2.2(d)(8). The limitation does not apply to "non-indigent inmates"; the regulation reads: "[o]nly non-indigent inmate funds in excess of the one time monthly amount of $15.00 can be deducted [from inmate accounts for payment of medical expenses and other specified costs] by the Business Manager[.]" N.J.A.C. 10A:2-2.2(h); see also N.J.A.C. 10A:2-2.2(d)(8). An "indigent inmate" is defined as "an inmate who has no funds in his or her account and is not able to earn inmate wages due to prolonged illness or any other uncontrollable circumstances, and who has been verified as having no outside source from which to obtain funds." N.J.A.C. 10A:1-2.2 (emphasis added).
In Mourning v. Correctional Medical Services of St. Louis, Missouri, 300 N.J. Super. 213 (App. Div.), certif. denied, 151 N.J. 468 (1997), we reiterated the holding of the United States Supreme Court that "payment of medical services for inmates is a matter of state law . . . 'as long as the governmental entity ensures that the medical care needed is in fact provided[.]'" Mourning, supra, 300 N.J. Super. at 227 (quoting Revere v. Mass. Gen. Hosp., 463 U.S. 239, 245, 103 S.Ct. 2979, 2983, 77 L.Ed. 2d 605, 611 (1983)). Based on Revere, a rational basis due process analysis, and an Eighth Amendment analysis under Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 290-91, 50 L.Ed. 2d 251, 261 (1976), we held that the co-payment statute does not violate the Federal or State Constitutions. Mourning, supra, 300 N.J. Super. at 228-33. However, when Mourning was decided in 1997, N.J.A.C. 10A:2-2.2(f), which is now N.J.A.C. 10A:2-2.2(h), read differently. The regulation then provided for a minimum balance below which the superintendent could not deduct funds from inmate accounts that applied to all inmates:
Only inmate funds in excess of a $15.00 balance can be deducted to pay court ordered penalty assessments, restitution, fines, or other revenue obligations.
[27 N.J.R. 119 (Jan. 3, 1995).]
See Mourning, supra, 300 N.J. Super. at 218-19 (discussing N.J.A.C. 10A:2-2.2(f)).
As previously noted, in 2000, N.J.A.C. 10A:2-2.2(f), which is now N.J.A.C. 10A:2-2.2(h), was amended to its present form to provide "[o]nly non-indigent inmate funds in excess of the one time monthly amount of $15.00 can be deducted by the Business Manager in accordance with [N.J.A.C. 10A:2-2.2(d)]."*fn3 During the rulemaking process, no specific reason was articulated for the change to former N.J.A.C. 10A:2-2.2(f), but, at the time of the amendment, the New Jersey Register noted that "[t]he Department acknowledges that some inmates may oppose the amendments regarding additional deductions from inmate accounts; however, these amendments are required by statute and are necessary for Departmental compliance." Id. at 2364; see 32 N.J.R. 2363(a) (July 3, 2000). The comment further stated that "[t]he adoption of amended rules regarding deductions mandated by the New Jersey Legislature should result in regular payments on fines, penalties and fees while bringing the requirements of the rules into full compliance with the current law." Id. at 2364.
Our decision in Mourning relied on the earlier version of the Administrative Code, as demonstrated by Judge King's explanation of N.J.S.A. 30:4-92 (which has not been amended since Mourning was decided) and the version of N.J.A.C. 10A:2-2 then in effect:
Under the copayment statute, the DOC may only deduct costs from funds in excess of $15 in the inmate's account and may not deduct more than one-third of the inmate's total income from a productive institutional occupation, after deductions for assessments, restitution and fines. See N.J.S.A. 30:4-92; N.J.A.C. 10A:2-2.2(f). Each inmate's account is credited with $15 at the beginning of each month, this is the inmate's personal budget for necessities. The DOC may not disturb the inmate's $15 necessity budget. If the inmate's account has insufficient funds to cover copayment charges, the inmate's account will carry an outstanding debit, and the DOC will deduct funds from the inmate's account as funds become available, subject to the one-third and $15 limitations of N.J.S.A. 30:4-92 and N.J.A.C. 10A:2-2.2(f), respectively. [Mourning, supra, 300 N.J. Super. at 218-19 (footnote omitted) (emphasis added).]
Further, in holding that an inmate's Eighth Amendment rights were not violated, the panel quoted the underlying oral opinion by Judge Carchman, then sitting in the Law Division:
[o]ther limitations on the co-payment statute's capacity to interfere with inmate health are provided by the limitation of withdrawals from inmates' trust accounts.
As previously noted, deductions are limited by statute and regulation to one third of an inmates' income, and funds over and beyond the minimal balance of $15. Proper implementation of these provisions will ensure that inmates' labors will never be exhausted exclusively on health care, and inmates will have at least $15 per month to spend on personal amenities, assuming they earn that much. [Id. at 231 (emphasis added).]
As pointed out in Mourning, "New Jersey's copayment statute does not deny medical services because of inability to pay and has built-in safeguards which include limiting the amount of funds which the DOC may deduct from an inmate['s] account to cover the cost of medical services." Id. at 226. In our analysis, we also stated that the Eighth Amendment bars a state from "'demonstrat[ing] deliberate indifference to plaintiffs' serious health problems[.]'" Id. at 230. We cited the United States Supreme Court's standard in explaining:
[i]n order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend "evolving standards of decency" in violation of the Eighth Amendment. [Id. at 230 (quoting Estelle, supra, 429 U.S. at 106, 97 S.Ct. at 290-91, 50 L.Ed. 2d at 261).]
The critical issue before us is the continued viability of Mourning or validity of the regulatory complex in light of the subsequent amendments to the Administrative Code with respect to "non-indigents" as defined in the Code.
As already noted, in Mourning, we relied on the understanding that the co-payment statute had "built-in safeguards" to prevent deducting an inmate's account below $15, referring to N.J.A.C. 10A:2-2.2 as it then stood. However, the 2000 revision apparently eliminated that safeguard with respect to "non-indigent inmates." See Mourning, supra, 300 N.J. Super. at 218-19, 226, 230-31; 32 N.J.R. 3437 (Sept. 18, 2000). The Mourning decision placed great weight on inmates not being forced to choose between medical treatment and all spending on "personal amenities[,]" premised on the reasoning that the $15 and "one third" deduction limitation would "ensure that inmates' labors will never be exhausted exclusively on health care[.]" Mourning, supra, 300 N.J. Super. at 231. According to appellant's brief and his spending records, the premise for the holding has not been honored in this case.
The DOC defends the present practice by distinguishing between "indigents" and "non-indigents," as defined in the regulations and by asserting that appellant is not "indigent."*fn4
The record does not develop the point, nor is the appealed decision premised on that finding. Moreover, the DOC fails to address the impact of the amended regulation on the holding in Mourning or the impact of N.J.S.A. 30:4-92, which remains in effect and does not distinguish between "indigent inmates" and "non-indigent inmates." This is so notwithstanding the serious question of whether the regulations, as applied in this case, are consistent with the legislative policy and statutory law as well as the Federal and State Constitutions.
We decline to examine the application of Mourning or to determine the constitutionality of the amended regulation based on this record. Accordingly, we remand the matter to the DOC to establish a record*fn5 and for further findings and conclusions to support its final administrative determination in this case. The final administrative determination shall be completed within ninety days. The parties may file supplementary briefs within thirty days thereafter if appellant is not satisfied with the result of the remand proceedings.
Remanded as aforesaid. Jurisdiction is retained.