Part II, Dying in Cell 40: State hired for-profit firm with rap sheet of death and lawsuits

Ashley Ellis. Photo courtesy of Sandra Gipe

There are cracks in all our paths that can open onto disaster. Ashley Ellis seemed to trip into more than her share. Her 2007 car accident was just that, an accident. Her auto insurance had expired two days before, but she was not speeding or impaired when she got distracted by one of her dogs, and hit a man on a motorcycle. He suffered terrible injuries, was put on a ventilator, and is in a wheelchair.

Ellis’ own injuries emerged over time. “Ashley was horrified by what she had done,” said Sandra Gipe, Ellis’ grandmother. In the two years between the accident and her incarceration in the Northwestern Correctional Facility in Swanton, Ellis became a licensed nursing aide, and “took care of people on ventilators,” said Mary Kay Lanthier, her lawyer. “That was all she knew to do, since she couldn’t help the man she hit.”

She also dropped almost 40 pounds from her already thin 126-pound frame, and her eating disorder became so severe she sought treatment. With a suspended driver’s license, her local options were few, and her state health insurance would cover only 10 days hospitalization in a specialized center. At some point she developed a drug dependency, and the doctor performing her autopsy, according to the police report, found 17 cigarettes and some Suboxone pills (prescribed to treat opiate dependence) wrapped in electrical tape in her vagina.

But if Ellis was flawed and fatally unlucky, PHS and the Vermont Department of Corrections had their own problems. They knew the system was full of holes: From January 2008 to May 2009, PHS reported 169 sick-call and pharmacy violations system-wide, and Corrections imposed $19,200 in fines. From August — the month Ellis died — through October, Northwest alone racked up 43 additional penalties.

The contractor and the state were also unlucky. Other deaths under PHS have created only passing media ripples. But Ellis, a pretty young woman incarcerated on a misdemeanor, was an easy object of press attention and public sympathy.

“People admitted in newspaper comments,” says Vermont’s Defender General Matthew Valerio, “that ‘I wouldn’t give a damn’ if it had been a sex offender” who died.

This time, Vermonters wanted to know who to blame, and the prison nurses were the easiest target. “My analogy is guards at Abu Ghraib,” said Mary Kay Lanthier, Ellis’ lawyer. “Sure the LPNs bear responsibility, but there is a systemic problem.”

It took Valerio a bit longer to reach that conclusion. When Ellis died, he said, “I pointed the finger directly at [Connie Hall] the nurse on duty, but realized she was just the last one in line. Now I think PHS is to blame. … Profit-driven organizations are prone to cut costs. The system failed.”

STAFFING ISSUES

That system began in 1996, when Vermont stopped running the prison health care system, privatized the service and opened it up to bids from out-of-state, for-profit companies. Darla Lawton, an investigator with the Defender General’s office attended a contract pitch that PHS won. “You had these companies saying, ‘We can take care of Vermont’s inmates,’ and I’m thinking you can’t even make your PowerPoint work. If nothing else, PHS is slick.”

Vermont has a moral responsibility because they know what’s going on and closed their eyes to it and that responsibility extends to all of us.”
~Seth Lipschutz
Attorney for the Vermont Defender General’s office

While slickness may play in comfortable meeting rooms, it doesn’t go far in prisons where ill and impaired inmates have few options. “Low staffing levels put Ellis in a position of not getting what she needed,” said Defender General Valerio. “It frequently happens, but usually no one dies.”

PHS’s $16.4 million a year contract allows it to staff Northwest and some other facilities on weekends (and many weekday shifts) with no one above the level of LPN. From Friday evening to Monday morning, only one PHS doctor is on call, by phone, to cover the more than 2,000 inmates incarcerated in 2009, and many of the 7,000 to 8,000 people who pass through the state’s eight jails annually. Dr. John Leppman, a PHS physician, says he typically fields 20 to 30 calls on a weekend. Nurses can work 12-hour shifts. One nurse said she was ordered to work 36 hours straight because no one else was available.

In all but one prison, PHS’ contract allows it to substitute LPNs “without penalty if an RN is not available.”

The substitution is not trivial: Lower paid LPNs are less trained. “It is not clear,” says Valerio, “that an LPN would know that it would be life threatening” to delay potassium.

Martha Israel, former PHS nurse. Photo by Terry J. Allen

Martha Israel, an RN, quit her job at the women’s prison after “PHS hired an LPN to be nurse manager and my supervisor,” she said. “At the prison, nurse managers have to make patient assessments regularly, but I thought that was incredibly unsafe — and illegal,” since the State Board of Nursing allows only RNs and (others more highly trained) to make patient assessments.

When PHS’ contract was coming up for renewal in 2007, Israel warned then-DOC head Robert Hofmann, the Board of Nursing and the media about the use of under-qualified staff. “No one listened,” she said.

Staffing problems are exacerbated by turnover rates, said Israel, and “PHS’ reputation is so bad that good people don’t want to work with them, or stay.”

Lorene Gendron, who worked for PHS for two years as an inmate advocate in Vermont, says that poor support, salaries and working conditions translate into high turnover. “They will hire any friggin’ warm body because they go through staff so much,” Gendron says.

Northwest “was understaffed and had trouble keeping people,” confirmed Dr. Charles Gluck, who retired several years ago. He worked one day a week at the women’s prison, typically seeing 20 to 30 patients. “If a patient comes in with that kind of background,” he said, referring to severe anorexia, “they should never have been admitted on a weekend, because no one is available. … “The poor LPN [on duty when Ellis died] was stuck with it, and probably not qualified.”

DRUG DELAYS

Fewer highly trained medical staff means cheaper operating costs, a goal that can also impact the quality and timeliness of care. Failing to treat inmates who carry infectious diseases, for example, saves money. “Treating people with hepatitis C is a very expensive procedure,” said Gluck. “I had to argue adamantly, and talked about preventing patients from taking hep-C back out into the community. But they [PHS] were just not going to do it.”

Gluck said his fight for better care was also frustrated by delays for meds and X-rays. Since prisoners are not allowed to bring in their own prescriptions, new ones must be obtained either from PHS’ Texas-based supplier or in-house stocks. When neither is available, nurses, and sometimes even corrections officers, go to the local Rite Aid. Police reported Connie Hall as describing these pick-ups as “a courtesy thing that the staff does for inmates.”

Vermont’s contract with PHS allows entering inmates to go two to three days without medication, except when orders are labeled “stat.” Then, even out-of-stock medications must be administered within two hours. Dr. John Leppman, the PHS physician on call the weekend Ellis died, would not say if his Saturday meds order carried that automatic trigger word, but Burroughs-Biron said that no available prison records included an order that Ellis’ potassium should be administered “stat.”

“There appears to have been a delay,” said Leppman. “If there was an unacceptable delay, then that was unacceptable.”

Some caregivers will not tolerate the unacceptable. One RN, who did not want to be named, said she risked her career to deliver prescribed meds. In 2006 one of her patients was in pain, but the prescribed Tylenol 3 would not arrive at the prison for days. The nurse knowingly violated the rules by taking Tylenol 3 another prisoner had left behind on release, and giving it to the suffering woman. “I did the wrong thing legally,” she said, “but I was trying to do what was right for my patient.” PHS fired her.

“When I heard about Ashley’s death, and the failure to provide meds,” said the woman, who is still in nursing, “I thought: ‘Here we go again.’ They don’t have enough staff, so they push people to the ultimate. I’ll bet a dollar to a dime that’s what happened to the LPN on the weekend Ellis died.”

In her two years as Vermont’s inmate advocate, Lorene Gendron visited prisons and fielded grievances that included charges of medical care on the cheap. “I would say: ‘Why can’t you just give the patient the med they need.’ And PHS would say: ‘It’s too expensive, or not on our formulary.’ It was hard to see something so simple to do for someone, and not be able to get it done. There was so much pressure not to prescribe.”

“The fewer services they provide, the more money they make,” said Lipschutz.

STATE ROLE

Andrew Pallito, commission of the Department of Corrections. Photo by Terry J. Allen

I’m still reeling,” Corrections Commissioner Andrew Pallito said of Ashley Ellis’ death. “Up until that point, they [PHS] were doing satisfactory work.”

In fact, Ellis’ was one of a number of untimely deaths in Vermont under Prison Health Services. A week into PHS’ first contract in 2005, Robert Nichols, suffering heroin withdrawal, died the first day of his imprisonment at Chittenden Regional Correctional Facility in S. Burlington, according to an investigation by the nonprofit Vermont Protection and Advocacy. Nichols never saw a physician and didn’t get his prescribed meds, VPA reported. His wife sued PHS, and the 2007 settlement was sealed under a confidentiality agreement. The next year, the death of Michael Estabrook at the same prison sparked the state to fine PHS $36,000 for failing to follow department procedures.

Ten days after Ellis’ death, Michael Crosby, 49, died less than 12 hours after entering the South Burlington prison. An autopsy revealed multiple intoxicants and various serious conditions. “I saw the tapes [of his intake],” said Pallito. “He appeared OK. He wasn’t staggering.”

When PHS’s 2005 contract came up for renewal for 2007 — despite the deaths, the blistering New York Times exposé on PHS’s abuses nationwide, and warnings by nurses and others – Vermont renewed the contract. The new contract let PHS cut back on 160 hours — 20 shifts a week — of nursing care at the Northwest correctional facility alone. It eliminated the prisoner advocate position as a cost-cutting
measure. Asked if money was the real reason, Gendron, who earned $14 an hour, said, “I’ll never be sure.”

Corrections, meanwhile, also allowed PHS to alter its contract so that it could use LPNs rather than RNs as clinical coordinators. Although Burroughs-Biron declined to say what reforms Vermont is considering for its next contractor, since the information might be used in litigation as a tacit admission of errors, the DOC head of health services acknowledged one change: “In future, the clinical coordinator, the person in charge of day-to-day functions, will be an RN.”

However, after clinic coordinator Renee Trombley was, as Burroughs-Biron put it, “removed from the facility” in the wake of Ellis’ death, another LPN, James Bessette, took over her position.

REVOLVING BARRED DOORS

“Vermont has a moral responsibility because they know what’s going on and closed their eyes to it,” said Seth Lipschutz, supervising attorney at the Vermont Defender General’s office. “And that responsibility extends to all of us.”

If, as seems likely, Correct Care Solutions (CCS), based in Nashville, Tenn., succeeds PHS on Feb. 1, it will, like its four predecessors, be handed much of that responsibility.

In 1996, Vermont hired its first for-profit contractor, Florida-based EMSA Correctional Care. A few months before, a Massachusetts auditor’s report found that the company had overcharged that state $1.5 million for “unsubstantiated AIDS-related treatments,” according to The Boston Globe, which also reported charges that EMSA did a “poor job of caring for inmates.”

A guard locks a cell door at Northwest Correctional Facility. Photo by Terry J. Allen

A year later, Lipschutz told the Globe that complaints of inadequate care in Vermont rose “exponentially” under EMSA.

In January 1999, EMSA was bought by PHS. In July 2000, Vermont moved on to Correctional Health Services, and six months later the contract was assigned to Correctional Medical Services (CMS). Vermont dumped CMS on Jan. 31, 2005 after a series of problems, including seven in-prison deaths in a year. The investigation that followed concluded that CMS had “inadequate staff [that] would lead to significant medical problems and errors in medication administration,” and called for “drastic measures to insure contract compliance.” [1]

CMS had also used unlicensed staff, and once, after a prison head objected, the company simply transferred the unqualified employee to a different facility.

An auditor’s report on CMS in 2004 concluded that Vermont had no real way to fulfill its responsibility to evaluate the quality of the company’s care. Pallito, the Corrections Department’s management executive at the time, acknowledged the department’s failings: “We didn’t belly up to the bar to monitor them,” the Web site www.realcostofprisons.org reported him saying. “I think we have made some improvements.”

Now DOC commissioner, Pallito calls Ellis’ death “an isolated incident. … [PHS has] been in Vermont for four years,” he told The Burlington Free Press. “On balance, it was not bad.”

NEXT

Bad or not, pushed or jumping, PHS is leaving on Jan. 31, and Correct Care Solutions is set to swing through the revolving barred door. It has much in common with its likely predecessor. Both PHS and Correct Care are for-profit, out-of-state providers based in Tennessee. And both have been led by the same CEO, Gerald (Jerry) Boyle.

Jerry Boyle, CEO of Prison Health Services

Before founding Correct Care in 2003, Boyle headed Prison Health Services from 1998 to 2003. The New York Times found in a 2005 investigation that during much of that period PHS’ medical care “around the nation has provoked criticism from judges and sheriffs, lawsuits from inmates’ families and whistle-blowers, and condemnations by federal, state and local authorities. The company has paid millions of dollars in fines and settlements.”

Before he headed PHS, Boyle was a vice president at EMSA when it held the Vermont contract. Boyle visited the state several times, according CCS executive vice president Patrick Cummiskey.

Cummiskey also revealed that Correct Care will assume far more responsibility than PHS, taking charge not only of physical health services but also mental health care as well.

Correct Care will probably retain many of the same staff and—barring a quite different contract — the same potential for medical lapses and lax oversight.

Sandra Gipe hopes that her granddaughter’s death will spark reform. But an investigation of Ellis’ death that fails to reach beyond finger-pointing and narrow fact-finding, may end up obscuring the causes and extent of a systemic breakdown that was remarkable for its tragic outcome, rather than its particular errors.

No matter how good the investigation, the contract or the new provider, a fundamental contradiction will remain: For-profit companies pit the health care needs of an often despised population against their own need to turn a profit. In the latter, at least, PHS’ parent company, America Service Group, Inc. was successful: Healthcare revenues from continuing contracts for the third quarter of 2009 — the quarter when Ellis died from lack of a $4 bottle of pills — increased almost 28 percent over that quarter in the prior year, to $160 million.

Contact Terry J. Allen

Editor’s note: A much shorter version of this story first appeared on the Web site In These Times.

Footnote [1] From Kurt Kuehl, DOC attorney,  EMSA; August 7, 1996 – June 30, 2000. Correctional Health Services; original contract period was July 1, 2000 – June 30, 2003.  However, the contract was amended to assign it to Correctional Medical Services and the amendment became effective on January 24, 2001.  That contract was then amended two times to extend the end dates to June 30, 2004 and then January 31, 2005. Prison Health Services; February 1, 2005 – January 31, 2010.