By Joe Rogalsky and Drew Volturo,
Delaware State News
DOVER - Despite questions from the federal Department of Justice, lawsuits and other questions about the quality of healthcare in Delaware's prisons, Commissioner of Corrections Stanley W. Taylor said last week he plans to stick with the firm currently holding the contract to treat prisoners.
Mr. Taylor expressed confidence in St. Louis-based Correctional Medical Services, which he awarded the medical care contract to in May.
CMS, which had held the contract in previous years, took over from First Correctional Medical Inc. on July 1, the start of the new budget year.
CMS' Web site bills the company as the "nation's premier provider of healthcare services to prisons and jails."
It provides services for correctional facilities in 27 states, according to the site.
The agreement calls for the state and CMS to review the contract in January.
Either side can terminate the contract with three-months' notice if it is not satisfied.
"My current assessment is that this is working well," Mr. Taylor told the Delaware State News in an hour-long interview Thursday.
"We will look at their request for compensation, and as long as it is reasonable, it is my expectation we will continue our relationship moving forward.
"When you look at CMS' track record, on balance, we believe they are delivering quality healthcare to the offender population."
The U.S. Department of Justice's Civil Rights Division announced last week it was launching a preliminary inquiry into the healthcare given to Delaware prisons.
The decision was motivated by a series of articles in the Wilmington News Journal, about which CMS and DOC have raised significant objections.
U.S. Attorney for Delaware Colm F. Connolly said the Civil Rights Division would collect information and "see if it warrants a full-blown investigation."
Delaware Treasurer Jack Markell, who has spearheaded a program to help save money on contracts, on Saturday called for an investigation into the state's contract with CMS. The state does not appear to be getting its money's worth, he said.
Mr. Markell is the first statewide elected Democrat to propose an investigation into the matter.
The investigation would include a detailed analysis of CMS' performance and the state's costs, as well as putting together panels that include medical experts and inmate family members to spell out the level of care expected from CMS.
"These deaths are tragic," Mr. Markell said.
"Letting a contract stand that may have contributed to them without a detailed investigation would be a tragedy as well.
"The state is spending millions of taxpayers' dollars on a contract that does not, at face, appear to be delivering on its promises. ... This is not just a dollars-and-cents issue, it's a life-and-death issue."
Several members of the Delaware General Assembly have also called for investigations, though the leaders of each chamber's corrections committee have not agreed to inquiries.
Even if state lawmakers do not investigate, they can pass legislation forcing the Department of Correction to change how it handles healthcare in prisons.
Gov. Ruth Ann Minner has given Mr. Taylor and the correctional healthcare system her vote of confidence.
"Commissioner Taylor has worked very hard in recent years to improve the healthcare provided to inmates in Delaware prisons," the governor said in a prepared statement last week.
"The funding for this service has doubled over the past five years, despite tight economic times, and the department has been diligent monitoring the quality of care for a very difficult and demanding population.
"Last year alone, the department processed more than 20,000 inmates, many receiving medical diagnosis and treatment as part of their incarceration and prior to their returning to the community.
"Like any program, there are areas we would like to improve, and the commissioner has repeatedly said that. But to say the system is in crisis is not only wrong, but irresponsible."
Mr. Taylor, during the interview, emphasized that Delaware has been accredited since 1986 by the National Commission on Correctional Health Care.
The commission audited DOC healthcare earlier this year at the request of the department because of questions about First Correctional Medical, which was the healthcare provider at the time.
The Delaware State News filed a request for the audit under the state's Freedom of Information Act, but had not received a response from DOC as of Friday afternoon.
CMS spokesman Ken Fields said that since his company took over prison care in Delaware in July, it has implemented several initiatives to improve care.
Those steps include deploying personnel with correctional healthcare experience to oversee medical care, educating inmates on healthcare so they can be responsible for their wellbeing and providing extra training to nurses.
"Correctional healthcare is certainly a complex and unique field," Mr. Fields said.
"Patients come to correctional facilities without a history or regularly receiving care.
"The diagnosis might not always be immediate and might take several tests and medical evaluations. Patients often have multiple and complex conditions that in some cases are very rare."
Dr. Tammy Kastre, the founder of First Correctional Medical, did not return two messages seeking comment left at the company's Arizona headquarters last week.
Legal questions
Dover attorney Stephen A. Hampton is representing the families of two former DOC inmates who died after medical officials allegedly denied them proper healthcare.
Mr. Hampton said he and Correctional Medical Services reached a settlement Monday, the terms of which were not disclosed, in the case of former prisoner Anthony Pierce.
Pierce, who was being held on violation of probation, died in March 2002 from a brain tumor that the attorney said was ignored during his incarceration, despite the lump growing "at an alarming rate" on the outside of his skull.
In a Kent County Superior Court case filed in 2003 on behalf of Pierce's family, Mr. Hampton wrote that Pierce's lump remained untreated until it was too late to save him.
Pierce, who was imprisoned in August 2000 at Sussex Correctional Institution near Georgetown, complained numerous times of headaches and other pain while the lump grew from a quarter-sized mass until it was nearly 10 inches in diameter, court documents state.
"Anthony was discharged on Feb. 25, 2002. He passed away on March 22, 2002," court records state.
"The cause of death was listed as 'brain tumor' due to 'osteosarcoma of skull.' "
Mr. Hampton said Pierce "more likely than not" would still be alive had he received proper medical care.
Mr. Fields, the CMS spokesman, said he could not comment on the specifics of the Pierce case or its settlement or any other prisoner's medical history, citing federal confidentiality requirements.
"Generally, firms involved in the healthcare field at times decide to resolve cases for various reasons," he said.
"Those reasons can include the time, expense and uncertainty that are involved in ongoing court proceedings."
Wilmington attorney Jeffrey K. Martin said word of alleged prison healthcare problems surfaced shortly after he began representing a prison counselor who was held hostage and raped in July 2004 and have continued.
"I've become painfully aware of the lack of medical care (in Delaware's prisons)," Mr. Martin said of the letters he has received.
"The situation is out of control such that inmates needing medical attention are not getting medical attention. Diseases are being left untreated. Injuries are being left untreated."
One of Mr. Martin's clients, inmate Timothy Ward, is suing the department in federal court, claiming he was denied proper medical treatment after he was beaten by another prisoner in July 2004 at the Delaware Correctional Center near Smyrna.
According to court records filed in October 2004 in U.S. District Court, Ward, serving a three-year sentence for armed robbery, was in the outdoor recreation area July 10 when inmate Robert Johnson attacked him "with his watch wrapped around his knuckles."
After the beating, correctional officers believed Ward was dead and took pictures of him, court records state. An inmate discovered he was alive and turned him over so he "would not choke on the blood in his throat."
Ward sustained a broken nose, dislocated jaw, shattered eye socket and several teeth were knocked out.
Family members called to DCC could barely identify Ward due to the beating, which had caused his head to swell to "almost three times its normal size," court records state.
"From the time of his attack on July 10 until late August, Tim and his family had been requesting that officials at DCC provide him with proper medical care," court records state.
"However, he had yet to be examined by a medical doctor since the day of the attack."
Two months after the attack, a doctor examined Ward.
Mr. Martin said more than a year after the attack, Ward still has not had the recommended surgery and he has not received replacement teeth for those that were knocked out.
At the time of the attack, First Correctional Medical was the state's prison healthcare provider.
Records in federal court show approximately 300 cases were filed against the companies delivering medical services to Delaware prisons since 1986.
A great majority of the case filings in U.S. District Court were done by inmates without an attorney. Many of the cases allege a lack of adequate healthcare.
Most of the cases were dismissed either by the judge granting summary judgment - a lack of factual evidence to support the plaintiff's claims - or because the inmate did not submit paperwork on time.
"We deal with thousands and thousands of inmates in the course of a single year," Mr. Taylor said.
"This is a very litigious group anyway - they sue. There will always be complaints about medical care, some of them founded, some of them unfounded.
"Litigation will always be part of medical services in correction, just like the free world. It is part of the healthcare industry now."
Back again
CMS, the St. Louis company that currently provides healthcare to prisoners, has been the state's medical services source before.
The company had the contract from 1985-96, and again from 2000-02, when First Correctional Medical outbid CMS by about $200,000.
In July 2004, Mr. Taylor said the DOC raised questions about "deficiencies" in the company's performance.
After an audit by the National Commission on Correctional Health Care revealed problems that could not be quickly fixed, the state and the company decided in March to terminate the healthcare contract effective June 30.
Mr. Taylor would not specify the deficiencies.
"We had some concerns about their work," he said.
"They were not accreditation-losing concerns, but we want to make sure we are completely up to snuff."
During First Correctional Medical's tenure, a convicted child molester was released from prison in 2003 earlier than sentenced because of poor healthcare.
In February 2004, Kent County Superior Court Judge William L Witham Jr. ordered Kenneth P. DeRoche released from his 57-month prison sentence 20 months early. DeRoche, of Kent County, remains on probation for two counts each of third-degree unlawful intercourse and third-degree unlawful sexual contact.
Judge Witham ruled that DeRoche, who has heart problems and high blood pressure, was not always given his medications, doctors failed to explain changes in the appearance of his medications and FCM did not follow a cardiologist's recommendations about some drugs.
With First Correctional Medical on the way out, Mr. Taylor needed to find replacement fast.
The state's familiarity with CMS was a large factor in his decision to award the company the remainder of the state's contract with First Correctional Medical.
"I had to find a vendor to provide healthcare in five weeks," Mr. Taylor said.
"After looking at a lot of things, CMS was the best one to go with."
DOC did not have enough time to go through the state's usual bid process, which can take about six months, for the $25.9 million contract.
Instead, Mr. Taylor received permission from the legislature, the attorney general's office and Gov. Minner to award the contract without competitive bidding.
The state's budget bill, approved July 1, contains a passage giving the Mr. Taylor permission to bypass the state's bidding laws.
"I did that with full disclosure," Mr. Taylor said.
"There was no sleight of hand. It was a vendor leaving on relatively short notice and having to ensure we would get quality healthcare and finding a vendor to come in and assume the current contract."
Looking ahead
When Mr. Taylor makes his agency's request for funding in the state's fiscal 2007 operating budget, he said he plans to ask for money to hire a doctor to work for the state and provide DOC medical advice.
Currently, when a dispute arises between an inmate and CMS, the state has to rely on the contractor for medical knowledge.
Mr. Taylor said a state doctor would have been useful in the just-settled Anthony Pierce case.
Mr. Taylor said DOC staff complained about the growth on Mr. Pierce's head, and after DOC contacted CMS, the company ordered another doctor to give a second diagnosis, which detected the tumor.
"There are going to be times when the medical doctors with the vendors and our staff are not going to agree," Mr. Taylor said.
"It would help us to have independent medical expertise. There are complex medical cases where we need outside expertise."
Janet Leban, executive director of the nonprofit Delaware Center for Justice, likes the idea of the state hiring an expert, but wants to make sure the person in that position is autonomous and has sufficient authority.
"I'd say about half of our grievances are medical, half for other reasons," said Ms. Leban, whose group monitors prisoners' rights to file grievances and intervenes on their behalf.
"We don't have the expertise to evaluate the medical quality in the grievance, just the process. The problem is that there is no outside review of the medical issues."
If a family member contacts the center to say their loved one is not receiving proper medical care, we'll phone the facility, then send in a case manager to meet with the inmate, then talk to the prison's medical staff to resolve the situation.
"Most of the time, our intervention is the difference between the prisoner getting the care that their loved ones think they should receive and the prisoner not receiving that care," Ms. Leban said.
Security issue?
Douglas Ingram, a former program manager for a company contracted with the Department of Correction to provide counseling and other services to inmates, said healthcare concerns could affect a correctional facility's security.
Mr. Taylor discounted healthcare concerns as a security issue, however.
"I won't say that it doesn't happen," the corrections commissioner said of inmates acting up over medical care, "but I would think that would be an infrequent issue."
Once as a counselor at Sussex Correctional Institution's boot camp, Mr. Ingram said, he came upon a 300-pound inmate who on a Friday was going to have to wait until Monday for a medical appointment to treat a painful abscessed tooth.
The medical staff was making the inmate wait until Monday as punishment for missing an earlier appointment for another issue, Mr. Ingram said, but he was concerned the cranky prisoner would be a disruption and a threat over the weekend because of the tooth pain.
To remedy the situation, Mr. Ingram said he brought the ailing prisoner to the warden's office and said he did not want the inmate to wait over the weekend in pain and potentially pose problems for the facility staff.
Within a few hours, Mr. Ingram said, the inmate received treatment for the tooth.
"Medical care inside a prison is a big component in keeping the place safe," said Mr. Ingram, who lives near Georgetown and is retired from the federal Bureau of Prisons.
"It makes it difficult on correctional officers when inmates think a fellow inmate is not receiving proper healthcare.
"They don't see any difference between the medical staff making the healthcare decisions and the correctional officers. They can take their frustrations out on a correctional officer."
Secrecy required
Gov. Minner and Mr. Taylor have not publicly discussed specifics on inmates' medical cases, citing advice from the state attorney general's office that disclosing medical information would violate a federal law.
The Health Insurance Portability and Accountability Act of 1996 sets strict guidelines for any entity as to how an individual's health information can be transmitted or disclosed to others.
Penalties can be as high as a $50,000 fine and a year in jail.
Alice Lucan, an attorney for the Maryland-Delaware-District of Columbia Press Association, said HIPAA applies to government agencies such as the Department of Correction and prevents them from releasing inmates' individual health records.
"The only way you can get the information is if the patient agrees for it to be released, thanks to HIPAA," Mrs. Lucan said.
"The state agency is definitely a covered entity."
Mr. Taylor said he would like to be forthcoming in some instances with medical information. The federal law, he said, should be tinkered with to give correctional agencies some latitude in releasing medical information.
"You are looking at a very frustrated commissioner who has a lot of facts that cannot be released because of HIPAA," Mr. Taylor said.
"It's a very frustrating position to be in. I think there's a flaw in HIPAA.
"We need to be able to provide information to legislative oversight bodies and we need to have a way to do it that does not violate the federal law."
Staff writer Joe Rogalsky can be reached at 741-8226 or jrogalsky@newszap.com.
