New Rules for Safekeepers

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A new law, already in effect as of October 1, 2019, makes some important changes to the process for transferring certain inmates from the county jail to the State prison system for medical or mental health treatment—commonly referred to as safekeepers.

Under prior law, an inmate could be transferred from the county jail to the Division of Adult Correction and Juvenile Justice of the Department of Public Safety (DACJJ, or in other words, the state prison system) if the custodian decided that the inmate required medical or mental health treatment that could best be provided there. A district or superior court judge would order the transfer, and the inmate would be returned to the county when the attending medical or mental health professional determined that he or she could be returned safely. G.S. 162-39(d). The judge was not required to state any particular timeline or duration for the confinement in prison.

Under the revised law, S.L. 2019-171 (H 108), effective for prisoners transferred on or after October 1, 2019, orders transferring a prisoner from the jail to DACJJ for medical or mental health treatment are limited to an initial period not to exceed 30 days. Before that up-to-30-day period ends, DACJJ will conduct an assessment of the inmate’s needs and make a recommendation on whether the inmate should stay in DACJJ or be returned to the county. There is no statewide boilerplate form for these transfers.

To extend the order beyond the initial period, the sheriff will need to present DACJJ’s assessment and any other relevant information to a judge, who will determine whether or not to extend the transfer. If the judge determines that the inmate should remain in DACJJ, he or she must set a date certain for further court review (which, unlike the initial order, is apparently not limited to 30 days). Although the amended statute does not expressly say so, the judge can probably order additional extensions at each subsequent review.

If the judge does not renew the order, the prison must release the inmate in accordance with the court order and the instructions of the attending medical or mental health professional.

The medical/mental health safekeepers described in G.S. 162-39(d) are not the only kind of safekeepers. Jail inmates can also be transferred to prison for the security reasons set out in G.S. 162-39(b) (escape risk, violently aggressive behavior, imminent danger to the staff, etc.). Some portions of the new law appear to apply to both medical/mental health safekeepers and security safekeepers. For example, the amended law makes the counties responsible for additional costs related to medical care provided to all safekeepers. Specifically, in addition to existing obligations to pay for inpatient medical expenses, outpatient expenses exceeding $35 per occurrence or illness, and certain eyeglasses and dental prosthetic devices, the county now must also pay for transportation and security costs for all safekeepers who receive health care outside of the prison facility. The reimbursement rate for those services is pegged to the rate set through the Statewide Misdemeanant Confinement Program (currently $0.58/mile for transportation and $25/hour for security personnel during the transfer). According to the fiscal note on the bill prepared by legislative staff, the prison system conducted 360 such trips to outside medical providers in Fiscal Year 2017–18. The amended law also says that the county must pay the cost of sick call encounters at the rate charged to state prison inmates, G.S. 162-39(c), but the fiscal note indicated that most (73 percent) of safekeeper inmates are inpatients and therefore not subject to sick call charges.

When the time comes for any safekeeper to be returned from prison to the county jail, DACJJ will contact the sheriff by phone and email to request a transfer. G.S. 148-19.3(a). If the sheriff fails to assume custody of the inmate within 10 days, then, after the tenth day, the county is liable to the State for an additional rate not to exceed $20 per day (on top of the usual $40 per day) for each day that the sheriff fails to take custody, unless the transfer order is extended because the inmate cannot be safely housed in the local jail. The sheriff can also get up to 10 days of the additional per day rate waived by the Health Services Section of the Department of Public Safety for extenuating circumstances.

New G.S. 148-19.3 provides that health care charges that are the responsibility of the transferring county are first to be submitted by the health care provider to the North Carolina Sheriffs’ Association’s Inmate Medical Costs Management Plan, which will scrub them and negotiate all charges to avoid overpayment and reduce costs.

New recordkeeping requirements in G.S. 162-39(b1) appear to be directed at keeping track of inmates transferred to prison for medical/mental health safekeeping (for example, the date the initial transfer was ordered, the date the prisoner received health services, a list of all health services, and the date the prison system determined that the prisoner no longer needs health services in prison). However, the requirements appear to apply only to inmates transferred “pursuant to subsection (b) of this section.” That is the subsection governing security safekeepers, not medical/mental health safekeepers, which are governed by subsection (d). Some security safekeepers will, of course, need medical care in prison from time to time, but, to be clear, they are not subject to the new rules regarding the initial 30-day transfer and periodic review by DACJJ, and they may not have been intended as the exclusive focus of the new recordkeeping requirements.

Sheriffs and jail administrators should be aware of these new rules if they seek to transfer inmates from the county to the prison system for safekeeping. Judges will need to be mindful of the distinctions between the different categories of safekeepers when setting the parameters of their initial transfer order, following the up-to-30-day initial period rule for medical/mental health safekeepers and recognizing their role in the periodic review process for those inmates. All parties should note that the new law does not appear to apply at all to Statewide Misdemeanant Confinement Program inmates transferred to prison for safekeeping under G.S. 148-32.1(b3), although that appears likely to be addressed by technical correction.

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