The Vermont Department of Corrections and its contractor for health care services are facing two lawsuits accusing them of gross negligence, medical malpractice and cruel and unusual punishment, among other charges.
In both lawsuits – one filed on behalf of the family of Robert Mossey, who killed himself in prison last year and the other filed by a former inmate whose name wasn’t disclosed – the plaintiffs say the quality of health care in Vermont’s prisons, provided by contractor Correct Care Solutions, is severely lacking.
Honest assessments, shielded from view
Health care in state correctional facilities is a government operation largely shielded from the public eye. But state law prohibits government officials from publicly sharing the reports of an independent auditor hired to oversee the quality of the correctional health care system.
“I wish I could help,” said Vermont State Auditor Doug Hoffer in an email response to a public records request for the audit reports. His office has the quarterly and biannual reports issued to corrections officials from August 2010 until the end of last year, but can’t disclose their findings.
According to a state audit released by Hoffer’s office Oct. 24, 2013, “The Vermont Program for Quality in Health Care (VPQHC) conducted audits at the eight correctional facilities and provided DOC with quarterly and biannual reports."
The state audit report outlines the contents of the VPQHC audits, which looked at several key indicators of the quality of the correctional health care system:
Examples of the health-related indicators reviewed by VPQHC include whether: 1) health assessments are completed within seven days of an inmate’s intake, 2) the medical administration record matches the doctor’s orders, and 3) sick call requests are triaged within the timeframes outlined by the contract.
But while the auditor’s office is aware of the reports, its own October 2013 audit report doesn’t shed any light on how Correct Care Solutions had performed.
As one VPQHC staffer said when asked for the records, the reports are “not available or public scrutiny, because that would inhibit” quality improvement. In other words, the staffer said, the quality reports are shielded from the public eye because they’re honest assessments of Correct Care Solutions’ performance.
Immune from public scrutiny
While it might sound odd that honest reports of a government contractor’s performance aren’t public records, it’s also true. According to Vermont state law, just about everything VPQHC does for the government or anyone else is exempt from the state’s public records law.
That’s because VPQHC is considered a “peer review committee,” defined in state law as a group “formed to evaluate and improve the quality of health care rendered by providers of health services or to determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care or that the cost of health care rendered was considered reasonable by the providers of professional health services in the area.”
And those evaluations, according to state law, are immune from public scrutiny.
Sen. Claire Ayer (D – Addison), the chair of the Senate Committee on Health and Welfare, said there is good reason for doctors to have privacy when discussing problems with medical care.
“For example, if I made some mistake by omission and I knew I’d get in trouble for even talking about it, I wouldn’t be able to discuss it and learn how to do it better,” Ayer said. “This [immunity] is to open that door so people can discuss how they did things, how they approached things so that they can do them better. And the only way that I’ve seen that we can make that work is to make it confidential so people will actually talk about what didn’t go well.”
Private doctors, in other words, would not mention mistakes if they thought they might get into trouble or lose business as a result. Ayer said members of the Senate Health and Welfare committee “haven’t really talked about health care in corrections … as a separate issue” in her time there.
Denied records requests
After Mossey’s family sued the Department of Corrections, alleging a massive failure of the health care system at Northern State Correctional Facility, VPR requested the VPQHC audits from both the Department of Corrections and the state auditor’s office. If there was a systemic failure of the health care system at Northern State at the time of Mossey’s suicide in August 2013, a thorough audit would likely find it, making the VPQHC reports vital to verifying Mossey’s family’s claims.
The heads of both agencies denied the requests, citing state statute.
Attorney David Sleigh, who is representing Mossey’s family, said that while the reports are shielded from disclosure – even in a court case – that law would be superseded by the U.S. Constitution, which guarantees a fair trial.
“Certainly there’s a great body of case law that says that statutory and evidentiary privileges are trumped by a legitimate constitutional right to due process and a fair trial,” he said.
Sleigh said he will likely seek the release of the audit reports in the Mossey case in an effort to get a better understanding of the general climate within the health care system in Vermont’s correctional facilities.
“Basically, when somebody claims that there’s a systemic failure to provide adequate medical care, as we are in this suit, getting the state’s own assessment of the medical care is highly relevant,” Sleigh said.
While the peer review exemption was designed in part to shield private practitioners from having the details of their practices disclosed publicly, Sleigh said that inmates have a different relationship with their health care providers than the general public. He said the state’s shielding of the reports is counterproductive.
“Where you’re talking about medical care that are provided to people who have no option to pursue alternatives – when you’re talking about inmates – they’re stuck with what’s provided to them,” Sleigh said. “That makes it inherently important to have some degree of review, because they can’t vote with their feet. I mean if you went to a pediatrician for your child and you just didn’t think that pediatrician was up to snuff, you could take your child to somebody else.”
Because inmates don’t have that choice, Sleigh said, quality control and public scrutiny in the prison health care system is vital.
The state’s audit of the correctional health care system from last October came to the conclusion that contract oversight had improved, but that the state had gone almost three years in its contract with Correct Care Solutions before it implemented a key quality control measure.
That measure, withholding payments for services that didn’t measure up to the contract’s requirements, was first implemented in December 2012. Correct Care Solutions began its contract with DOC in January of 2010.
The 2013 state audit is one of few public documents providing a snapshot of the prison health care system, and it’s unclear if the VPQHC reports will ever be publicly disclosed.