History of Ignoring Legal Directives Means Bill to Oversee DOC is Fundamentally Flawed


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Senate Bill 957, “An Act Concerning the Oversight of Health Care in Correctional Institutions by the Department of Public Health,” if passed, would establish an office within the Department of Public Health to oversee “the delivery of healthcare services to approximately 10,000 inmates in 13 correctional institutions, including periodic inspections of the healthcare services provided, establishing guidelines for the delivery of healthcare services, recommending any necessary changes, notifying correctional institutions of any failures, and ordering corrective actions as needed.” 

The state will do this by hiring “two Nurse Consultants, two Health Program Associates, a Supervising Nurse Consultant, a half-time Public Health Services Manager, and a half-time Office Assistant” — employees who advocates of the bill have called a “third party” — to supervise health care in Connecticut prisons.  

The bill doesn’t provide nurse managers with any particular authority. 

The cost of the legislation, according to the fiscal note attached to the bill, isn’t insignificant but it’s manageable – about $500,000, a small price to pay to keep thousands of people healthy, or at least not descending into illness. The new office might also insist on more medical care, that might cost more, but the fiscal note doesn’t predict those expenses. 

But because Senate Bill 957 expects a statute to control behavior of correction officials and staff, it is fundamentally flawed.

The Department of Correction has a history of ignoring legal directives. 

When the settlement of the civil suit McPherson v. Lamont required guards to wear masks to prevent the spread of the coronavirus inside cramped and poorly ventilated facilities, they didn’t comply.

Staff also ignored a consent decree with the Department of Justice dating back to 1988 that required the medical staff at York Correctional Institution to establish and implement protocols for handling pregnant women. The best evidence is a newborn in a prison toilet – landing there after his mother gave birth without medical assistance in 2018.  

Then there are the eight inmate deaths that resulted from substandard medical care — including nine months of delay in diagnosing Patrick Camera’s “near-continuous nosebleeds” as stage four cancer and Wayne World’s subcutaneous lymphoma that was dismissed as psoriasis — despite the clear mandate to keep inmates alive until their date of discharge. 

In his testimony on the bill, Ed Hawthorne, president of the Connecticut AFL-CIO, offered his support as long as the legislation was amended to ensure that all open healthcare employment would be filled. But none of the more egregious cases of inmates suffering from lack of care are due to low staffing. Guards choosing not to wear masks doesn’t happen because of empty positions. Babies don’t enter the world through toilet bowls because there aren’t enough nurses to examine a pregnant woman. On the contrary, that particular woman had been seen the night before the birth and no one performed an internal examination. Moreover, medical staff refused to see her again as labor pains tore through her

This isn’t a human resources issue. It’s an issue of believing that incarcerated people deserve care and, quite frankly, many of the professionals have become so jaded that their belief that health care is a human right is waning. 

Connecticut is the only state where the Department of Correction oversees inmate health care. Given its record of indifference, the agency might be less than ideal for this role, but it was forced to take over the role in 2018 because the professionals at UConn Correctional Managed Health Care weren’t adequately performing the job. A medical leader like UConn — Newsweek named a UConn hospital to the World’s Best Hospitals in 2022 —  wasn’t keeping records, much less retaining them for the three to seven years required by state law. Sometimes even licensed healthcare professionals can’t get past their disdain for people they think broke the law. 

Providing substandard medical care is already illegal, technically. In fact, people in prison are the only people whose health care is guaranteed by the Constitution. But determining whether care is substandard is a matter for the courts, reaching those decisions takes time, sometimes years, and would-be plaintiffs must meet the Prison Litigation Reform Act’s exacting exhaustion requirements that cull even the most meritorious claims from the docket. 

The oversight established in SB 957 may amount to a faster way to force officials to provide care by providing a sounding board.

If there were no other alternative, then the current bill might be worth trying as it would be the only regulation of correctional healthcare.  But there is another possibility, one that developed only this January. It’s a waiver of the so-called “Medicaid Inmate Exclusion Policy” of the Social Security Act which prohibits the payment of federal Medicaid matching funds for the cost of any services provided to an “inmate of a public institution,” except when the individual is a “patient in a medical institution,” meaning a hospital.  

As written now, even in a state like Connecticut that expanded Medicaid eligibility under the Affordable Care Act, people in correctional facilities can’t enroll in Medicaid. 

Until now.  

The state of California applied for and received what’s called a 1115 waiver to the inmate exclusion. This waiver will help people get health care but it will do something heretofore unheard of: it will allow the Centers for Medicare and Medicaid Services (CMS) to regulate and oversee the care that the federal government is paying for. 

According to Dan Mistak, director of health care initiatives for justice-involved populations at Community Oriented Correctional Health Services, a nonprofit dedicated to connecting jails and health care providers, to access Medicaid funds, systems must pass regulatory checkpoints like quality assurance, utilization review, and prior authorization. None of that is happening now in prisons or jails.

Connecticut has applied for and received a 1115 waiver for a substance abuse disorder treatment demonstration. CMS has funded that test through 2027

It’s not clear how long it would take to apply for and secure approval for a 1115 waiver for Connecticut’s prisons. Since California’s historic approval, states have modified their applications to match California’s so there’s little risk of denial. To date, eleven states are ready to bill the federal government for inmate healthcare, but Connecticut isn’t one of them

Of course, since CMS’s oversight of correctional settings will be new, it’s possible that even this federal agency may exhibit the same apathy about the care of incarcerated people as UCONN did. 

That’s unlikely, mostly because CMS oversight has an ability to withhold payment for services which gives it power, some teeth. For CMS, this isn’t necessarily about care, but care that receives federal funding. CMS is a true third party because the center isn’t going to allow prisons to waste federal funds. CMS officials will lose their jobs if someone in Connecticut prison stays employed while not honoring medical ethics and the standard of care.  

Senate Bill 957 is a necessary start toward controlling the ways inmates are denied necessary medical care, but an application — and the subsequent approval — of a 1115 waiver to the Social Security Act would be even more effective.

Bozelko served more than six years at the York Correctional Institution. While she was incarcerated for non-violent crimes that remain on appeal, Bozelko published a book of poetry entitled Up the River: An Anthology (Bleakhouse, 2013).