Does a Virginia sheriff or regional jail have to pay the outside hospital bill when an inmate is treated for a medical condition that existed before they came into custody?

Plain-English summary

The Hanover County Sheriff asked a hard cost question. Under § 53.1-126, who pays the outside hospital bill when an inmate at a local or regional jail gets treatment for a pre-existing condition? The 2003 General Assembly had specifically addressed this by amending the statute, but a 2004 AG opinion had reached a different conclusion, and the field had been left unsettled.

Attorney General Mark R. Herring resolved it. Section 53.1-126, as amended by 2003 Va. Acts chs. 928 and 1019, provides:

Nothing herein shall be construed to require a sheriff, jail superintendent or a locality to pay for the medical treatment of an inmate for any injury, illness or condition that existed prior to the inmate's commitment to a local or regional facility, except that medical treatment shall not be withheld for any communicable diseases, serious medical needs, or life threatening conditions.

So there are two distinct rules. On payment: the jail is not required to pay outside providers for treatment of pre-existing conditions. On treatment access: the jail must ensure that inmates receive treatment for communicable diseases, serious medical needs, and life-threatening conditions, whether pre-existing or not. The payment exemption does not relieve the jail of the constitutional duty to ensure treatment; it shifts the cost of outside treatment for pre-existing conditions away from the jail (and onto the inmate, the inmate's insurance, or others acting on the inmate's behalf).

The AG overruled the contrary 2004 AG opinion to the extent it was inconsistent.

The opinion comes with an important practical warning. Even with the statute's plain language permitting jails to decline payment for outside treatment of pre-existing conditions, declining to pay could in some cases give rise to an Eighth Amendment claim if the refusal "impedes access to treatment." The cost question and the access question are connected in practice: a provider that won't see the patient because no one will pay leaves the inmate without care. The 2014 federal court decision in Scott v. Clarke, 64 F. Supp. 3d 813 (W.D. Va. 2014), held the Virginia Department of Corrections has a non-delegable constitutional duty to provide adequate medical treatment for inmates' serious medical needs. Sheriffs, regional jail superintendents, and localities need to be mindful that the statutory payment exemption operates in the shadow of that constitutional duty.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 53.1-126 has been amended in subsequent sessions, and constitutional law on jail medical care continues to develop. Any current dispute over inmate medical costs should be analyzed against the current statutory text and recent Fourth Circuit case law on Eighth Amendment claims and adequacy of care.

Background and statutory framework

Sheriffs and regional jail superintendents have an Eighth Amendment duty to provide adequate medical care to people in their custody. Farmer v. Brennan, 511 U.S. 825, 832 (1994), and Estelle v. Gamble, 429 U.S. 97, 104-05 (1976), are the foundational cases: the Eighth Amendment's prohibition on cruel and unusual punishment requires "humane conditions of confinement," which include adequate medical care. Failure to provide that care, with deliberate indifference to serious medical needs, is unconstitutional. Scott v. Clarke, 64 F. Supp. 3d 813 (W.D. Va. 2014), applied this rule in Virginia and held that the constitutional duty is non-delegable.

The Code of Virginia codifies parts of this duty in § 53.1-126 and obligates sheriffs and regional jail superintendents to provide necessary medical care to inmates (2016 Op. Va. Att'y Gen. No. 15-079; 1986-1987 Op. Va. Att'y Gen. 255, 257 n.3). In most cases, medical care is provided in-house at the local correctional facility. When in-house care is inadequate, the inmate must be transported to an outside provider (Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982); 1986-1987 Op. Va. Att'y Gen. 255).

The cost-allocation question is what § 53.1-126 addresses for outside treatment. The 2003 amendments (2003 Va. Acts chs. 928, 1019) added the proviso that nothing in the statute requires a sheriff, jail superintendent, or locality to pay for medical treatment of an inmate for "any injury, illness or condition that existed prior to the inmate's commitment to a local or regional facility, except that medical treatment shall not be withheld for any communicable diseases, serious medical needs, or life threatening conditions."

The plain-language structure has two prongs:

(1) Payment is not required for outside treatment of pre-existing conditions. Sheriffs and jails are exempt from financial liability for those costs. The legislature chose its words with care (Alger v. Commonwealth, 267 Va. 255, 261 (2004)), and the exemption is enforceable.

(2) Treatment access cannot be withheld for communicable diseases, serious medical needs, or life-threatening conditions, even if pre-existing. The jail must ensure that the inmate receives this treatment. The financial-exemption clause does not relieve the obligation to make the treatment available.

The two prongs together mean that for a pre-existing serious or life-threatening condition, the jail must arrange for treatment (typically by transport to an outside provider) but is not liable for the cost; the cost falls on the inmate, the inmate's insurance, or others acting on the inmate's behalf.

The AG flagged the constitutional risk: declining to pay can in practice impede access to treatment if the inmate has no other source of payment. The statutory exemption from payment does not exempt the jail from the Eighth Amendment duty to ensure treatment. Whether refusing to pay creates a constitutional violation in any specific case is "factually dependent and not the subject of this Opinion."

Common questions

Q: Does a Virginia jail have to pay the hospital when an inmate is treated for a pre-existing condition?
A: The AG concluded no. Section 53.1-126 exempts the sheriff, regional jail superintendent, and locality from paying outside providers for pre-existing conditions.

Q: Does the jail still have to ensure the inmate gets treatment?
A: For communicable diseases, serious medical needs, and life-threatening conditions, yes, whether pre-existing or not. The statute carves out access from the payment exemption.

Q: Who pays for the outside treatment if the jail doesn't?
A: The inmate, the inmate's insurance (if any, including Medicaid where available), or others acting on the inmate's behalf. The statute is silent on the specifics.

Q: Could refusing to pay create a constitutional problem?
A: Yes, in some circumstances. The Eighth Amendment requires access to adequate medical care. If the jail's refusal to pay practically denies the inmate access to treatment for a serious medical need, an Eighth Amendment claim may arise. The opinion flagged this risk explicitly.

Q: What is a "pre-existing" condition for these purposes?
A: An injury, illness, or condition that existed prior to the inmate's commitment to the local or regional facility. The statute does not parse the boundary further; specific cases will turn on facts.

Q: Does this analysis apply to state prisons or only local/regional jails?
A: This opinion addresses local and regional jails. The Virginia Department of Corrections has its own framework, and Scott v. Clarke confirms the constitutional duty for state prisons.

Q: What is the 2004 AG opinion that's mentioned?
A: The AG overruled the 2004 opinion to the extent inconsistent with this 2017 opinion. The earlier opinion had reached a different conclusion about jail payment obligations.

Citations and references

Virginia statutes:

• Va. Code Ann. § 53.1-126 (sheriff and jail duties; payment for medical treatment)
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)
• 2003 Va. Acts chs. 928, 1019 (amending § 53.1-126)

Cases:

• Farmer v. Brennan, 511 U.S. 825 (1994)
• Estelle v. Gamble, 429 U.S. 97 (1976)
• Scott v. Clarke, 64 F. Supp. 3d 813 (W.D. Va. 2014)
• Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982)
• Alger v. Commonwealth, 267 Va. 255 (2004)

Prior AG opinions:

• 1986-1987 Op. Va. Att'y Gen. 255
• 2016 Op. Va. Att'y Gen. No. 15-079
• A 2004 AG opinion (overruled to the extent inconsistent with this opinion)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2017/16-055-Hines-(inmate-medical-expenses)--for-issuance.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

April 27, 2017

The Honorable David R. Hines
Hanover County Sheriff
Post Office Box 40
Hanover, Virginia 23069

Dear Sheriff Hines:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a sheriff or regional jail superintendent is responsible under § 53.1-126 of the Code of Virginia for the payment of medical expenses incurred by an inmate for treatment at a hospital outside of the local correctional facility, where such treatment is for a pre-existing medical condition.

Applicable Law and Discussion

Sheriffs and regional jail superintendents are constitutionally obligated to provide inmates with adequate medical care.[1] Under Virginia law, the duty of sheriffs, regional jail superintendents and local governments to ensure treatment is received under such circumstances applies to inmates with pre-existing medical conditions.[2] In many instances, medical care is provided on an in-house basis within the local correctional facility. In the event that a local correctional facility is unable to adequately provide medically necessary services in-house, an inmate must be transported to an outside hospital or medical facility,[3] and you question only the matter of liability for payment of the expense for such outside treatment.

Section 53.1-126 of the Code of Virginia directly addresses your question. In 2003, the General Assembly amended the statute to make clear that sheriffs, regional jails and localities are not required to pay for outside treatment for inmates' pre-existing medical conditions, but that they must nevertheless ensure that inmates receive treatment for "communicable diseases, serious medical needs, and life threatening conditions," even if pre-existing:

Nothing herein shall be construed to require a sheriff, jail superintendent or a locality to pay for the medical treatment of an inmate for any injury, illness or condition that existed prior to the inmate's commitment to a local or regional facility, except that medical treatment shall not be withheld for any communicable diseases, serious medical needs, or life threatening conditions.[4]

Thus, the plain language of the applicable statute exempts jails from liability for payment for medical treatment for an inmate's pre-existing condition. We must assume that the legislature chose with care the words it used when enacting a statute[5] and that those words express the legislature's intent.

Also, section 53.1-126 respects the constitutional prohibition against denying medical care for serious medical conditions as it requires that inmates receive medical care for serious medical conditions, as well as for communicable diseases and life-threatening conditions, whether pre-existing or not. It merely excuses sheriffs, jail superintendents, and localities from paying for medical treatment for such conditions by outside providers when the conditions pre-exist incarceration, leaving that responsibility with the inmate or others acting on the inmate's behalf. Accordingly, the statute is enforceable as written.[6] To the extent this conclusion is inconsistent with the 2004 Opinion of this Office referenced in your request, that Opinion is overruled.

Conclusion

For the foregoing reasons, it is my opinion that while local correctional facilities must ensure inmates receive appropriate medical care for communicable diseases, serious medical needs, or life threatening conditions, whether pre-existing or not, those facilities are not liable for the cost of such treatment by outside healthcare providers if such disease, medical need or condition existed prior to local incarceration.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] Farmer v. Brennan, 511 U.S. 825, 832 (1994) (noting that the Eighth amendment to the United States Constitution "imposes duties on [prison] officials" to "provide humane conditions of confinement," which include ensuring that inmates receive "adequate ... medical care"); Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (holding that prisoners have a constitutional right to adequate medical care, which is derived from the prohibition against cruel and unusual punishment contained in the Eighth Amendment). The Code of Virginia requires sheriffs and regional jail superintendents to provide necessary medical care to inmates. See VA. CODE ANN. § 53.1-126 (2013); see also 2016 Op. Va. Att'y Gen. No. 15-079, available at http://www.oag.state.va.us/citizen-resources/opinions; 1986-1987 Op. Va. Att'y Gen. 255, 257 n.3 ("[Section] 53.1-126 makes the sheriff responsible for providing food, clothing, and medicine for jail inmates.").

[2] See Scott v. Clarke, 64 F. Supp. 3d 813 (W.D. Va. 2014). In this case, inmates at Fluvanna Correctional Center for Women claimed that the Virginia Department of Corrections provided them with inadequate medical care. Id. at 815. On summary judgment, the Court held that the Virginia Department of Corrections has a non-delegable constitutional duty to provide adequate medical treatment to inmates' serious medical needs, and that deliberate indifference to those needs would be a violation of the Eighth Amendment. Id. at 822.

[3] See § 53.1-126; 1986-1987 Op. Va. Att'y Gen. 255, 255 ("[Sheriffs] are responsible for the medical needs of ... prisoners ... [and] should rely on the professional advice of [the] jail physician in determining the degree and circumstance upon when outside medical care is reasonably required."). The Eighth Amendment further obligates sheriffs to transport inmates to health care providers outside of the jail in order to receive medically necessary services, if such services cannot be adequately provided within the local correctional facility. See, e.g., supra note 1; Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982).

[4] 2003 Va. Acts chs. 928, 1019.

[5] Alger v. Commonwealth, 267 Va. 255, 261 (2004).

[6] While this is my interpretation of the plain language of the statute, sheriffs, regional jail superintendents and localities should be mindful of the possibility that declining to pay outside providers for treatment of an inmate's serious health condition, even if pre-existing, may give rise to a constitutional claim of denial of adequate medical care under the Eighth Amendment if refusal to pay impedes access to treatment. Any such determination is, of course, factually dependent and not the subject of this Opinion.