Advocates: Prison Health Cuts Will Prompt Lawsuits

Press Coverage of TCRP Human Rights Report on Prison Health Care

Texas Tribune

by Brandi Grissom

Health care in Texas prisons is already so abysmal it borders on being unconstitutional, according to a report released by the Texas Civil Rights Project. The cuts lawmakers are now considering, they said, will almost certainly spark lawsuits that could cost Texas more money than it would spend to simply improve the system.

“Cutting the budget for prison health care will be a disaster for taxpayers of the state,” said Brian McGiverin, an attorney with the Civil Rights Project.

Texas pays just $9.88 per day per prisoner for health care, according to the Project’s report. In California, where the prison system is under judicial supervision and was ordered to release 40,000 prisoners after it was found unconstitutional, the state spends about $28 per prisoner per day. Under proposed cuts lawmakers are considering for the 2012-13 budget, Texas would pay just $6 per prisoner per day for health care. “This would be the ultimate penny-wise, pound-foolish decision,” said Scott Medlock, director of the Project’s prisoners’ rights program.

Prison Healthcare
View TCRP Report on Prison Healthcare

Instead of slashing the limited care prisons already provide, the Project said lawmakers should require the Texas Board of Pardons and Paroles to more vigorously exercise its authority to release prisoners who qualify for parole, and particularly elderly and ill inmates who are little threat to society but a big cost to care for institutionally.

About 65 percent of the 154,000 prisoners, according to the report, are eligible for parole. And despite the fact that prisoners over the age of 55 make up just 5.4 percent of the total population, they account for 25 percent of prison hospitalization costs. Although doctors have recommended hundreds of severely ill patients for release under medically intensive supervision, the parole board has only granted about 10 percent of those cases.

If more prisoners who are eligible for parole are released from state institutions, more money will be left to provide improved care for inmates who remain behind bars, said Jim Harrington, executive director of the Project. That might mean higher costs to the state for parole services, but that would be less than costly litigation the state could face if its health care services worsen.

Texas’ “Secret Death Penalty”: Inadequate prison healthcare

Grits for Breakfast

A new report from the Texas Civil Rights Project (TCRP) argues that “Texas has created a ‘secret death penalty’: poor medical care can turn temporary imprisonment for relatively minor offenses into a death sentence.” Timothy Cole’s family might agree. He died of an asthma attack in TDCJ in 1999, years before DNA would prove another man committed the rape for which he was falsely convicted.

The report’s title, “A Thin Line,” comes from a quote from Dr. Ben Raimer, a UTMB vice president and former head of the Correctional Managed Care Committee, and yes, he who recently received a $125K bonus. I was in the room back in 2006 when he told the Senate Criminal Justice Committee, “Right now the [health care] system is constitutional. . . but we’re on a thin line.” Indeed, he’d been saying the same thing for quite some time, warning that further cuts would render TDCJ healthcare unconstitutional. Now, of course the Legislature wants to slash prison heathcare even further, UTMB wants to bail, and TCRP fears that thin line is about to be breached.

They’ve got a point: According to the Legislative Budget Board’s estimates (House report, large pdf, p. 554), per-prisoner healthcare spending under both the House and Senate budgets would decline from $7.67 per prisoner-day to $5.82. That’s not fat they’re trimming, nor even muscle, but all the way to the bone, going from $2,799.55 per prisoner year to $2,124.30. This at a time, notes TCRP, when TDCJ’s prisoner population is aging, with older inmates’ healthcare costs far outpacing those of younger prisoners.

Citing various case law (some of it not applicable in the US 5th Circuit), TCRP argues that “Texas has adopted a managed health care plan, which can potentially violate the Eighth Amendment if financial considerations are placed above the medical needs of the prisoner.” One issue raised that I don’t see frequently discussed was:

the thick veil of secrecy kept over inmate deaths, denying public oversight, and increasing medical negligence. According to state law, nearly every report or inspection that could tell legislators or the public the truth about the state of prison healthcare is kept secret – including everything from inmate grievances “to publicly-funded medical experiments to state inspections of blood-splattered kidney dialysis offices.” It is impossible, for instance, for a patient to find out whether the dialysis machine he uses regularly is cleaned of biohazardous materials, like blood, whether he is in prison or in the free world – even though the state obtains that information for itself.

Here’s another notable excerpt on the remarkable lack of meaningful oversight or accountability for UTMB regarding the quality (or for that matter basic delivery) of prison health services:

Lack of accountability is one of the biggest problems in these contracts. UTMB and Tech are contractually rewarded for removing one of the most important sources of health care oversight and accountability: grievances filed by the inmates themselves. One performance measure included in these most recent contracts with UTMB and TTUHSC is the percentage of unsustained grievances: that is, grievances that are resolved against the inmate. The two providers are contractually obligated to sustain 10% or less of Step One medical grievances and 6% or less of Step Two medical grievances. This encourages providers to resolve even the most valid and pressing inmate grievances in favor of TDCJ rather than in favor of the inmate. If TDCJ employees feel they will be penalized for resolving valid grievances in favor of the inmate, then they will be encouraged to discard valid complaints, crippling the grievance system. The positive intent of this clause – to increase the quality of medical services so that fewer complaints are lodged – could be much more effectively reached by measuring the providers’ reactions to and improvements following valid inmate grievances, which would reward improvement rather than unaccountability.

The contract also allows a relatively high percentage of vacancies in medical provider positions. The 2010-2011 fiscal year contracts permit up to a 12% vacancy rate for unit-level provider positions: that is, physicians, nurses, and other allied medical health providers who work in the prison units. A 12% vacancy rate is not success; it should be considered unacceptable. More healthcare providers in prisons means fewer necessary high-cost hospital and specialist visits, and thus fewer transportation costs. It also means faster healthcare, better healthcare, and fewer expensive complications from simple, easily-treatable ailments. TDCJ should prioritize recruitment rather than accept by contract an insufficient number of providers.

Finally, the contract gives performance measures for what constitutes adequate and timely access to care that are ultimately too weak to improve the system. Prisoners who submit sick call requests must be “physically triaged,” or examined to evaluate the urgency of their complaints, within 48 hours (72 hours on weekends), and, if referred to a physician or other medical professional, must be seen by that professional within seven days of triage. Though these standards seem acceptable, the mandatory compliance rate is low enough to make these standards less meaningful: UTMB and Tech must comply with these standards only 80% of the time without penalty or additional monitoring. This means that for every five prisoners who submit sick call requests, one prisoner can go entirely without investigation of his or her complaint with no penalty to the medical providers. Since inmate self-monitoring is the primary TDCJ mechanism for identifying prisoner health problems, it is crucial that complaints are taken more seriously than this.

In addition, there are no standards for prompt treatment, only prompt evaluation of whether treatment is necessary. Even when a serious health complaint is observed, treatment of that complaint could be delayed indefinitely without the medical providers violating their contractual obligations. Monitoring of performance outcomes is a necessary addition to the contract and the only way to identify and address problems of the most important part of medical care: the success of medical treatment.

Moreover, the contract specifies no performance measures for access to care in emergency treatment for prisoners, only for cases in which a sick call request is submitted. A prisoner like David West, who collapses in the shower, obviously cannot submit a sick call request, but under current guidelines nobody is strictly accountable for failing to treat him.

In addition, the report raises an issue I’ve thought for years deserved more play than it usually gets – jail and prisons’ role in the development of drug-resistant disease and infections: “Prisons have become incubators of infections. Uneven treatment produces drug-resistant strains of diseases, which can be introduced to the public when prisoners are released. Hepatitis, tuberculosis, HIV/AIDS, and staph infections are among the most dangerous infectious diseases in prison. Each of these poses a serious risk to both prisoners and the public, and Texas prison health care must include proactive and preventative measures to prevent their spread.” Well said; the harm from developing drug-resistant bugs spreads far beyond the prison walls.

In the end, aside from a rehearsal for possible future briefs in a federal civil rights suit, TCRP’s report boils down to a plea to adequately fund prison healtlhcare during the budget crunch, reducing expenses if necessary not by by lowering quality of care but the number of inmates in the system, particularly those with high medical costs. It concludes with a sentiment I’d heartily endorse:

This legislative session, our leaders will face tough decisions. In a time when cuts to education and health care programs are likely, it will be extremely difficult politically to resist slashing prison health care budgets.

Fortunately, Texas can alleviate this serious problem by taking other, low cost, solutions. Parole non-violent offenders. Release the extremely ill on medically recommended intensive supervision. Closing a handful of prisons would both be politically easier than closing schools or hospitals, and help solve the prison health care crisis, without creating additional crime.

Times are tough now. But, if Texas is not careful, our prison system could end up in the same place as California’s: paying additional billions of dollars, under federal supervision, and being forced to release tens of thousands of prisoners. It’s time our legislators got “smart on crime,” not just “tough on crime.”

Scott Henson