Just after the New Year, the Bureau of Prisons updated its formulary, from which most medications for federal prisoners are prescribed. (Part I of the formulary is here.).
As I’ve written previously, “Where a client is taking medication, counsel should also provide the prescribing physician a copy of the BOP’s national formulary to confirm that the medication is available or, if not, to facilitate a possible transition to another medication.” What this means is that where a defendant facing federal imprisonment is taking prescribed medication to manage medical or mental health issues, it is advisable that the prescribing physician review the BOP formulary to confirm whether the individual’s medication is included. If so, there is a greater likelihood that the individual will continue to receive said medication upon placement in Bureau custody (though prison doctors routinely review and modify medications upon a prisoner’s arrival at an institution, much to prisoners’ understandable consternation).
If a medication is not included in the formulary, consideration should be given to substituting formulary medications well in advance of sentencing so as to enable the prescribing physician an opportunity to assess how the individual responds to the change. Again, if successful, there is a better chance that the same medication will be prescribed once in BOP custody. If not, the doctor can and should provide counsel a letter (to be forwarded to the U.S. Probation Office for inclusion in the presentence report) confirming that the BOP’s formulary was consulted; that a substitution was attempted; and the reason both for the discontinuation of the formulary medication and the need for the medication prescribed in its place. Such a letter, a copy of which can be taken to a facility when surrendering and presented to staff during admission and orientation, increases the odds that the BOP will recognize the legitimate need for a non-formulary medication, and accommodate the individual accordingly.
In sum, it is extremely important that a federal defendant’s PSR accurately reflect his medication regimen in terms of what is prescribed, in what dosages and for what specific reason(s). Additionally, where said regimen deviates from the Bureau of Prisons’ formulary, counsel should secure a letter clearly explaining that formulary medications were considered (and prescribed) and why they are not suitable alternatives to treat the problem at-issue.