Monitor’s Second and Third Reports Find Medical Care From CMS for Delaware Prisoners Still Lacking

by David M. Reutter

Despite a monitor to provide oversight, Correctional Medical Services (CMS) continues to suffer from a “lack of stable and effective leadership” that inhibits it from supplying adequate medical care to Delaware prisoners. That was the conclusion drawn in the Second Semi-Annual Report of the Independent Monitor of the Memorandum of Agreement (MOA) between the U.S. Department of Justice and the State of Delaware, which was issued in January 2008. The monitor’s third report, released in July 2008, found continued problems with services provided by CMS.

The agreement to monitor prison medical care, which involves the Delaware Dept. of Correction (DDOC), followed a public outcry after The News Journal published a series of damning articles that detailed the abysmal medical treatment (or lack thereof) provided to DDOC prisoners. [See: PLN, Dec. 2005, p.1; July 2007, p.8]. The independent monitor, Joshua W. Martin III, issued his first semi-annual report on July 29, 2007. [See: PLN, Feb. 2008, p.24]. That report focused on challenges faced by the DDOC to achieve “substantial compliance” with the agreement.

The monitor’s second report “acts as a baseline against which the [DDOC’s] future improvement will be compared.” The report deferred assessing some provisions of the MOA while finalized policies were implemented. The monitor rated DDOC based on three levels of compliance: substantial, partial and non-compliant.

DDOC was in non-compliance with only a few of the agreement provisions (17 of 217 total provisions), but likewise was in substantial compliance with only a small number (31 of 217). This indicated that DDOC had much work to do, for the assessment of areas in partial compliance was “a very broad designation and in some instances reflects minimal progress … made in eliminating the constitutional deficiencies that motivated the parties to enter into the MOA,” the report stated.

Much emphasis was placed on the DDOC’s obligation to provide adequate healthcare for state prisoners. The DDOC, however, has contracted with CMS to supply that care. For its proposed 2009 fiscal year budget, the DDOC included $40 million for prisoner medical care – of which $38 million will go to CMS.

From all appearances, it seems that CMS is engaging in its usual business practice: providing minimal care with minimal staff, which increases the company’s profit margin at the expense of adequate medical treatment for prisoners. That practice includes creating a façade that policies or procedures are being followed; however, according to the monitor’s second semi-annual report, “it often turns out that such practice or procedure is not, in fact, being followed in spite of the belief of the individual providing information. This is symptomatic of a lack of supervision of staff, and poor or non-existent self-monitoring.”

The monitor found significant problems in basic record keeping for medical files. Among the four prisons covered by the MOA – the Dolores J. Baylor Women’s Correctional Institution (DJBCI), the Delaware Correctional Center (DCC), the Howard R. Young Correctional Institution (HRYCI) and the Sussex Correctional Institution (SCI), several deficiencies were applicable to all of the facilities.

First, they maintained separate infirmary and outpatient records; the infirmary file was not placed in the outpatient file once a prisoner was released from the infirmary. Second, the files were not maintained in an organized fashion, which meant that a clinician had to search a prisoner’s entire health record because documents were placed in incorrect parts of the file. Third, problems existed with transferring medical files when a prisoner was moved to a different facility. Finally, the filing of medication administration records was done improperly or not at all.

At HRYCI, the monitor found 150 boxes of medical records that were pending review to determine if the prisoner-patients were still in the system. There were so many boxes of backlogged records because that was where many “laboratory reports, health care requests, consultation requests and other documents” often ended up.

The monitor found that many of the staff members employed by CMS were either not licensed to perform their duties or not practicing within the scope of their training. At the Delaware Correctional Center, one physician was a pathologist but practiced general medicine; another physician had completed only an internship but was managing patients with both complicated and uncomplicated chronic illnesses. At HRYCI, the mental health counselors were not appropriately licensed.

Further, the monitor stated that CMS’s staffing level was insufficient to meet the needs of the prison population. While the physician and primary nurse practitioners at DJBCI were found to be very conscientious, the “staffing shortages create systematic problems that have the potential to result in providers being impeded in rendering adequate health care to patients.” Staffing was found to be extremely inadequate at the other three prisons subject to monitoring. Mental health services at HRYCI were so bad, for example, that they amounted to little more than “welfare checks” of mentally ill prisoners.

Leadership was a serious issue. There was no documentation at DJBCI describing the medical director’s responsibilities. At the Delaware Correctional Center, two people were designated as medical director, which created “confusion and lack of direction” for staff.
Inconsistency in medical services administration at HYRCI “led to inhibit growth of program development.” The most damning statement on CMS’s leadership concerned SCI; the monitor said the primary physician and psychiatrist at SCI had failed to provide “very strong leadership or meaningful peer review.”

Serious problems were found in the cleanliness of the medical areas of the four prisons monitored under the MOA, and sufficient space also was a concern. The medical areas were so cramped or inadequate that they provided little or no privacy for prisoners. At DJBCI, sick call was conducted in the infirmary hallway. The infirmary unit at DCC did not even have an examination room.

Then again, prisoners were fortunate even to receive a sick call examination. On 18 of 30 days at DCC, sick call slips were not collected. Many of those slips indicated they were the “third, fourth, and fifth” attempt by prisoners to receive care for the same medical problem. The shortage among medical staff prevented prisoners from being seen by a nurse or clinician within 72 hours, and some prisoners were not seen “for five to twelve days after nurse triage, and often not seen at all,” according to the second semi-annual report.

That report found additional problems in emergency care, specialty care, accommodation of special needs, administration of medication, and documentation of care that was provided. CMS spokesman Ken Fields refused to comment on the monitor’s report. “I am not going to respond to any specifics,” he said.

DDOC Commissioner Carl Danberg called the second semi-annual report “fair and balanced,” and acknowledged CMS’s failures. “I’ve made it clear to CMS that I am not satisfied with the pace of progress, but CMS has been working cooperatively with us, and I will continue to hold them to the terms of the contract, and push for total compliance.”

In regard to unresolved problems cited in the monitor’s third report, Danberg replied, “It is hard to argue. I’ve had a year and a half to turn it around. And I freely admit I’m disappointed with the progress we’ve made. I am not satisfied with the pace. I have expressed my dissatisfaction privately and publicly with the vendor. We have made multiple attempts at changing the way we’re doing business to try to speed up the progress of change.”

The third semi-annual report, released on July 29, 2008, noted some improvements concerning timeliness of intake procedures and sanitation, but found “the lack of stable and effective leadership at the vendor-level remains a concern.” Turnover among CMS administrative staff was specifically cited. In terms of the monitoring provisions, there were 22 areas of non-compliance and 151 areas of partial compliance out of the 217 provisions.

Beyond the prison and military context, a contractor that fails to uphold its contractual obligations is sanctioned or fired. In the world of corrections, however, companies like CMS are allowed to avoid fulfilling their responsibilities until public pressure becomes more than government bureaucrats can bear. Until that time, prison walls help to hide the atrocities of inadequate medical care and the eventual impact upon society.

“This report tells me that the state is continuing to pay tens of millions of dollars for a health care program that routinely breaches the applicable standards of medicine, violates the human rights of inmates, and puts us all at risk of serious infectious diseases,” said attorney Steve Hampton, who has represented prisoners and their families in lawsuits against the DDOC. “The prisons have become incubators for all sorts of diseases such as MRSA, TB, and hepatitis. Prison walls do not stop these diseases. Allowing them to flourish in prison means they will eventually flourish on the outside,” Hampton stated.

Meanwhile, CMS continues to profit from lucrative prison healthcare contracts – though perhaps not for much longer in Delaware. In July 2008, current Lt. Governor and gubernatorial candidate John Carney, Jr. said he would fire CMS if elected. His opponent in the Democratic primary, Jack Markell, who presently serves as the State Treasurer, went even further, saying that firing CMS “wouldn’t go far enough,” according to an article in The News Journal. Superior Court Judge Bill Lee, a GOP candidate for governor, concurred that the state should cancel its contract with CMS.

The current CMS contract with the State of Delaware expires on June 30, 2009. The DDOC independent monitor’s reports are available on PLN’s website.

Sources: Second and Third Semi-Annual Reports of the Independent Monitor of the Memorandum of Agreement between the U.S. Department of Justice and the State of Delaware; The News Journal

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