Features » December 8, 2009
Death by Privatization
For-profit prison healthcare system implicated in death of inmate.
“PHS would say, ‘It’s too expensive, or not on our formulary.’ It was hard to see something so simple and not be able to get it done. There was so much pressure not to prescribe,” Gendron said.
Ashley Ellis’s misdemeanor arrest turned into a death sentence. Her crime: “careless and negligent operation of a motor vehicle.” Less than two days after entering a Vermont prison on a 30-day sentence, she died from the careless and negligent operation of a privatized for-profit prison healthcare system.
Her death shows what can, and does, happen across the country when states outsource prisoner medical services: states cut corners on monitoring, and contractors skimp on care.
Ellis’ death “is a pretty blatant and obvious and extreme case of gross negligence,” says Seth Lipschutz, supervising attorney at the Vermont Defenders office. “We figured out in a day that they killed her.”
There are cracks in everyone’s path that can widen into disaster. Ellis seemed to trip into more than her share. The car accident for which she was jailed was just that – an accident. She was not speeding or impaired when she hit a man on a motorcycle. He suffered terrible injuries, was put on a ventilator, and is in a wheelchair.
Her injuries emerged over time. “Ashley was horrified by what she had done,” said Sandra Gipe, her grandmother. In the two years between the accident and her incarceration, Ellis became a licensed nursing aide, and “took care of people on ventilators,” said her public defender Mary Kay Lanthier. “That was all she knew to do, since she couldn’t help the man she hit.”
She also dropped almost 40 pounds, and her eating disorder became so severe she had been hospitalized. When she entered prison, she required regular potassium supplements to keep her heart from shutting down. Prison Health Services (PHS) never gave her the prescribed medication that could have saved her life. An autopsy put the cause of death as heart failure caused by “denial of access to medication.”
Ellis stood 5 foot 6 inches and weighed 87 pounds on Friday, August 14, when Gipe drove her to the Northwest State Correctional Facility in Swanton, Vt. A few days earlier, a news report on her sentencing described the 23-year-old as “gaunt and haggard.” Her public defender asked for no jail time because traffic accidents aren’t crimes, and Ellis was too sick. Judge Thomas Zonay, either ignoring or ignorant of the bare-bones medical staffing on weekends, ordered Ellis to report at the start of the weekend to the 160-bed red brick prison. Zonay declined comment.
From the moment Ellis entered the bleak intake room with its two barred cells, her life was in the hands of PHS, the fourth for-profit prison healthcare contractor since 1996 to serve Vermont inmates. The Tennessee-based company’s cross-country rap sheet is spattered with deaths, lawsuits, millions of dollars in fines and settlements, and numerous investigations. A 2005 three-part New York Times investigation found PHS care “flawed and sometimes lethal.”
PHS and Vermont’s Department of Corrections (DOC) have lawyered up, but we know that days in advance of her incarceration, Ellis’s doctor faxed prison authorities health records documenting her serious anorexia/bulimia nervosa, her need for frequent meals, and most importantly, potassium.
On Friday afternoon, a licensed practical nurse (LPN) conducted the prison’s medical intake. On Saturday morning, Dr. John Leppman, the only PHS physician on-call that weekend for Vermont’s eight facilities, gave LPN Connie Hall an order for folic acid, potassium and Tums. No potassium was in stock, so a nurse left a cell phone message for a colleague to stop for some at the local drug store before reporting for her 6 p.m. shift. That nurse did not check her messages and arrived at the prison just before the Rite Aid closed for the night.
We also know that by contract, nursing on weekends at Northwest is skeletal and assigned to LPNs who may not have the training to know the importance of potassium, and are barred by state nursing regulations from assessing patients.
By Saturday afternoon, Ellis, who knew the physical danger signs, was begging so often and fervently for potassium that her jailers nicknamed her “Potassium Girl.”
Taking pity on the emaciated woman, one corrections officer (CO) violated rules to make her a peanut butter and jelly sandwich, according to Darla Lawton, an investigator with the defender general’s office. Another CO was outraged that someone copped a 30-day sentence for a misdemeanor. Ellis was “a skeleton,” he says, “I have never seen anyone in that condition.”
By 9 p.m., an hour before lockdown, Ellis complained that she felt unwell and went to bed. “Ashley was someone who needed help so much, and no one helped her,” Gipe says.
On Sunday at 6:15 a.m., Ellis seemed OK when a CO brought breakfast to her cell, but when he came to collect the tray, Ellis lay crumpled on her bunk. Her eyes were fixed open, her mouth contained unswallowed food.
Up and down Delta Block, locked-in inmates pressed against the small windows in their steel doors, riveted by the unfolding tragedy.
Ellis was pronounced dead at the local hospital.
PHS’s public relations firm issued a statement that Ellis “received care that met applicable standards…[and that] PHS did not deny her access to medications.” The company refuses to say more, Vermont has refused to file charges, and the DOC has stonewalled some records requests. Ellis’ family is considering a civil suit.
For PHS, paying off lawsuits is part of the cost of doing business. “It’s in their interest to provide inadequate care and take lumps when sued,” Lipschutz says. And when things get really dicey, PHS simply quits, “thus preserving its marketable claim that it has never been let go for cause,” the New York Times wrote four years ago. Conveniently for PHS and Vermont, the contract expires in January, and the relationship is ending with a volley of I-quit, don’t-bother-to-reapply exchanges.
Vermont’s serial contracts with for-profit prison healthcare corporations follow a nationwide pattern: Prisoners get inadequate care, contractors absorb lawsuits, states switch providers, and the conflict between profit-making and good care remains.
As Lipschutz sees it, Ellis’ death is “just another example of the maxim: ‘We don’t care. We don’t have to.’ ”
“We” usually includes the public. “People admitted in newspaper comments,” says Vermont’s Defender General Matthew Valerio, “that if it had been a sex offender [who died] they ‘wouldn’t give a damn.’”
But Ellis, a pretty young woman, incarcerated for an accident, drew press, public sympathy, and a search for those responsible.
At first “I pointed the finger directly at [Connie Hall], the nurse on duty,” says Valerio, “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.”
“My analogy is guards at Abu Ghraib,” Lanthier says. “Sure the LPNs bear responsibly, but there is a systemic problem.”
Vermont first entered that system in the 1990s with EMSA (Emergency Medical Services Associates, later bought by PHS). Next came CHS, and then Correctional Medical Services (CMS), which the state dumped in 2004 after seven in-prison deaths in one year. An investigation found “inadequate staff [that] would lead to significant medical problems and errors in medication administration,” and called for “drastic measures to insure contract compliance.” PHS arrived in 2005.
Understaffed to death
“Low staffing levels put Ellis in a position of not getting what she needed,” Valerio says. “It frequently happens, but usually no one dies.”
PHS’s $16.4 million per year contract allows it to staff Northwest and other facilities on weekends (and many weekday shifts) with no one above the level of LPN. One PHS doctor is on call, by phone, to cover the 1,600 beds and the 7,000-8,000 people who annually transit the state’s eight jails. Leppman says he fields 20 to 30 calls a weekend. Nurses can work 12-hour shifts, and one says she was ordered to work 36 hours straight because no one else was available.
PHS’s contract allows all but one prison to substitute an LPN “without penalty if an RN is not available.”
The substitution is not trivial. Paid less, LPNs are also less trained (typically one year), and it is not clear, says Valerio, “that an LPN would know that it would have been life threatening” to delay potassium. Lorene Gendron, who worked for PHS for two years as an inmate advocate, says that poor support, salaries and working conditions mean high turnover. “They will hire any friggin’ warm body because they go through staff so much,” she says.
“PHS’s reputation is so bad that good people don’t want to work with them, or stay,” says Martha Israel, an RN who says she quit the women’s prison after “PHS hired an LPN to be nurse manager, a position requiring making patient assessments regularly, but I thought that was incredibly unsafe – and illegal.” When PHS’s contract was up for renewal, she tried to warn the DOC.
Timely treatment was a perennial problem. Dr. Charles Gluck, now retired, said that when he worked for PHS, he was frustrated by common delays in getting meds and X-rays.
One RN risked her career to fill the gap. In 2006 her patient was in pain, but the prescribed Tylenol 3 would not arrive for days. She violated the rules by taking Tylenol 3 a released prisoner had left behind, 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,” she said, “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.”
When Vermont first hired PHS in 2005, the contract mandated an inmate advocate to visit the prisons and field grievances. “I would say, ‘Why can’t you just give the patient the med they need?’” Gendron asked. “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,” Lipschutz says.
People vs. profits
“I’m still reeling,” Andrew Pallito, DOC commissioner, says of Ellis’s death. “Up until that point, they [PHS] were doing satisfactory work.”
In fact, from January 2008 to May 2009 (three month before Ellis died), PHS reported 169 sick call and pharmacy violations, and DOC imposed $19,200 in penalties.
Despite deaths, the blistering New York Times exposé, and warnings by nurses and others, Vermont renewed PHS’s contract for 2007. It let PHS cut twenty nursing shifts a week at Northwest, alter its contract to use LPNs rather than RNs as clinical coordinators and cut the inmate advocate position. Asked if money was the reason, Gendron, who earned $14 an hour, says, “I’ll never be sure.”
Much of PHS’s performance is self-reported, and state monitoring relies on limited resources as well as good intentions. Almost five years ago, Pallito was DOC management executive when an auditor’s report on CMS found that Vermont had no real way to evaluate the quality of care. “We didn’t belly up to the bar to monitor them,” he says. “I think we have made some improvements.”
Now DOC head, Pallito called Ellis’s death “an isolated incident. …[PHS has] been in Vermont for four years. On balance, it was not bad.”
Bad or not, PHS is exiting the revolving door and Correct Care Solutions (CCS) is entering. They have much in common. Both, are for-profit providers, and both have shared the same CEO, Gerald (Jerry) Boyle.
Before founding CCS in 2003, Boyle headed PHS from 1998 to 2003, a period covered by the Times investigation that found 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.”
Boyle’s Vermont connection goes back further. He was also a vice-president with EMSA when it was the state’s first prison healthcare contractor.
Negotiations between Vermont and CCS are in the final stage, and it is likely that the new contractor will retain many of the same staff and, unless Vermont writes a very different contract, a tradition of medical lapses and lax oversight.
Gipe is hoping that inquiries into her granddaughter’s death will spur reform. But if the investigation is confined to finger-pointing and narrow facts, the answers may obscure rather than reveal the extent and causes of a systemic breakdown that was remarkable for its tragic outcome rather than its particular errors.
Vermont, along with many other states, will still have to resolve the contradiction between the healthcare needs of an often despised population, and the demands of a private contractor for profit. In the latter, at least, PHS 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 2008, to $160 million.
Terry J. Allen
Terry J. Allen, an In These Times senior editor, has written the magazine's monthly investigative health and science column since 2006.