Like most insurance companies, the BOP has established a 3-tier formulary consisting of approximately 3500 medications, for which they’re available based on cost-containment measures.
Noted above, is The BOP’s most recent 2020 Drug Formulary which consists of approximately 3500 medications in toto, giving the defense team the ability to identify those medications specific to their client’s needs, to be checked against their client’s medications before the PSR, and PSI are completed. Without detailed knowledge of these medications, the defendant could face an interruption in their medical care which could at worse, affect his/her life.
If your client was previously treated with a specific generic medication before entering the BOP, while they may receive the same generic medication, it will likely differ in color, size, and shape once incarcerated as there are many generic manufacturers for a single brand drug. Informing your client about how these same medications may differ before they’re incarcerated can go a long way to allaying their fears.
Tier I: On Formulary
The BOP’s first tier of drugs, considered on the formulary, is available once prescribed by a physician in the BOP, after examining the inmate and reviewing their PSR medical records which contain his initial physician prescribing records (Blatstein et al., 2021). At this point, all inmates are just a “number”, to be seen, evaluated, and then move on.
Tier II: Non-Formulary (Requires a lengthy preauthorization process)
The second level of medications available in the BOP is known as non-formulary medications. While these are available, it’s only after a lengthy preauthorization process which at best could take up to 6 months or longer. For these reasons, defense counsel must ensure that a client’s medical records have been provided in full to the BOP and the current treating physician, preferably before the sentencing hearing (as well as before the PSR and PSI have both been formally been completed), has actively participated in the PSR (and Sentencing Memorandum if necessary), to ensure a smooth transition to enable the preapproval of any non-formulary medications for your client (Blatstein et al., 2021).
Should their medication be on the Non-Formulary Tier, the participation of the current treating physician before the PSR (and PSI) needs to persuade the Court and BOP Physician’s thus circumventing the pre-authorization process, eliminating the waiting time, providing the medications upon arrival at the institution (Blatstein et al., 2021).
Tier III: Not Available
The BOP third tier (“prescribing a drug that is therapeutically equivalent to, but chemically different from, the drug originally prescribed by a physician”) is meant to “reduce costs, increase workplace efficiency, enhance medication access, and improve inventory management” (Federal Bureau of Prisons Health Services [BOPHS], 2020a). Again, working with your client’s current treating physician and allowing them to review all of the medications available on the BOP’s entire list may provide you with two options:
1) They may find an appropriate substitute medication
2) Both you and the current treating physician may have to begin to include in your defense strategy either a reason as to why this meets:
2a) the minimum “Medical standard of care”, which is typically defined as the level and type of care that a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the circumstances that led to the alleged malpractice, or if this is not possible and the client’s life is at risk, or
2b) Requesting home confinement to protect their life.
Epipen®: is an example of a medication that the BOP may issue to inmates to carry on their person who has known anaphylaxis, (BOP, Page 6).
Self-Surrender and Perscriptions (Documentation for all of them should be in the PSR and PSI)
For all prescriptions: Medications (I recommend bringing a month’s supply), Medical Devices (CPAP, BiPAP), Orthotics, Prosthetics, Glasses, False teeth, A Service Animal, Hearing aids, …you get the picture. If you surrender on a holiday or weekend, the BOP may keep them. Otherwise, the worse that can happen is that they throw some away, but now at least you and your attorney now have a paper trail to work with.
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Dr. Blatstein, 240.888.7778, firstname.lastname@example.org, PPRS © 2021/2022