During Wednesday’s meeting of the Budget Review Subcommittee on Justice and Judiciary, the Kentucky Justice and Public Safety Cabinet outlined an emergency regulation and parallel regular regulation that were issued following a lawsuit that was filed by counties against the state Department of Corrections.
The emergency regulation, which became effective Aug. 17, comes after a 2023 lawsuit filed by the Kentucky Jailers Association and five counties (Boyd, Campbell, Kenton, Marion and Whitley) challenged the state’s definition of “routine care” for the medical care of state inmates housed in county jails.
Multiple issues were cited, including lagging classification of inmates placing more of the cost on the county, while the state argued those requests for reimbursement by counties stretched beyond the department’s interpreted definition of “routine care” that is the responsibility of the county, per KRS 441.045(5)(a).
Both the circuit and appellate courts ruled that DOC’s definition, in the words of the Court of Appeals, was “impermissibly broad” and arbitrary and contrary to legislative intent.
DOC’s previous interpretation was that the definition included every medical, dental or psychological procedure that did not require a hospital stay over 23 hours or general anesthesia. There is no definition of “routine care” in state law, and no guidance on such was included by either court.
“Routine care” is now defined by the emergency regulation as “…necessary care that is customary, predictable and commonly provided within a correctional facility or standard, local outpatient providers; and can be delivered through standard correctional health care delivery systems, including on-site services or routinely accessible off-site outpatient services.”
Routine care, per the regulation, now includes:
- Evaluation and treatment of minor or stable conditions, including infections, minor injuries, and common illnesses;
- Chronic care management, including ongoing treatment of conditions such as hypertension, diabetes, asthma, or mental health conditions where the treatment does not require advanced or intensive intervention;
- Outpatient medical, dental, and behavioral health services that are commonly available in the local community;
- Prescription medications and medication management, excluding high-cost or specialty medications requiring specialized handling or authorization;
- Basic diagnostic services, including lab testing and standard radiology such as X-rays; and medically necessary follow-up care.
The cabinet’s testimony then turned to the regulation’s language on what is included in “beyond regular and routine care” for which the state is financially responsible, to include the following:
- Necessary care that exceeds routine care due to the complexity, intensity or specialization and requires resources not typically available through standard correctional or local outpatient care arrangements, including inpatient hospitalization, emergency medical care, required immediate transport and advanced intervention;
- Surgical procedures including outpatient surgery requiring general anesthesia, twilight sedation, conscious sedation or specialized surgical facilities or providers;
- Advanced or invasive treatment by specialists including cardiology, oncology, neurology or specialists in similar fields;
- Dental treatment requiring specialized or extensive restorative, surgical or other treatment that cannot be reasonably provided through routine dental services available within correctional facilities or through standard outpatient dental care;
- Obstetrical, or gynecological care requiring treatment or monitoring by a specialist for a diagnosed maternal or fetal condition that requires specialized testing or procedures, or a level of clinical monitoring beyond routine prenatal or post-partum or gynecological care;
- Advanced diagnostic services including CT scan, MRI, or other non-routine imaging or procedures;
- High-cost or specialty pharmaceuticals including biologics, chemotherapy agents or medications requiring specialized administration or monitoring;
- Long-term or intrusive treatment including dialysis or inpatient psychiatric care;
- Other services requiring sustained specialized intervention and services that, based on a professional clinical judgment, are not reasonably categorized as routine care.
The e-regulation also requires jailers to obtain pre-authorization in most circumstances.
Ann Blaylock, general counsel for the Justice and Public Safety Cabinet, told legislators the Cabinet will continue to monitor costs for these services, for which the current state budget allocation includes $10 million in funding. She said the Cabinet may need to engage the General Assembly in the 2027 session to provide additional funding.
She added that the Cabinet and the Department of Corrections drafted the definitions in consultation with jailers and has requested their comments on the regulation.
Rep. Scott Sharp (R-Boyd) said the holding of inmates awaiting trial is “a (financial) burden, not only for my jail but a lot of jails across the state…and all that cost gets transferred to the county.” He said the law “clearly needs to be changed” and asked Blaylock if the Cabinet is working with the jailers to make corrections to this law.
She stated the Cabinet is following the law and if that changes, (the Department) will follow the law.
Emergency regulations in Kentucky are effective for 270 days or when an identical, ordinary regulation is adopted to permanently replace the e-regulation, whichever comes first. The filing agency may extend the filing time for the accompanying ordinary regulation review process, adding days to the original maximum effective days of 270 (KRS 13A.190).
- Click here to watch a recording of the meeting.
