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Tag: prison health care

For Prisoners, Medicaid Waivers Permit Off-Site Care -- And Better Outcomes

Lidia Lech reached for a ramen noodle container because that’s all she had to contain the green-brown discharge coming out of her vagina.

She planned to show it to a doctor at Baystate Medical Center and ask them if it indicated any danger to her unborn son, Kaiden, whose Caesarian section delivery was scheduled for January 15, 2014.

Incarcerated at the Hampden County Sheriff's Department’s Western Massachusetts Women's Correctional Center ("WCC") in Chicopee, Massachusetts, Lech had been told what she already knew at an intake assessment months earlier: that she was carrying a high-risk pregnancy. Six years earlier, she had lost a baby to a uterine rupture.

It was two days before Christmas and she had spent the months of November and December pleading for medical attention, to be transported to Baystate again. An ultrasound had been conducted at the hospital days on December 18 and doctors told her that her baby was fine. But she didn’t agree. Something was wrong.

To the nurses at WCC, Lech reported all of her symptoms: a list that kept growing and looking like a list of conditions that require immediate attention when a woman is less than 37 weeks pregnant: a rash, itching in her vaginal area, pain, a racing heart, severe headache, changes in eyesight. blurred vision, feeling her son Kaiden kick less often, vaginal bleeding, preterm uterine contractions, and the discharge she stored in the ramen cup. Certainly, that type of discharge wasn’t normal.

'The Nurses Need To Know If This Can Wait 'Til Morning'

Each time, nurses told Lech to lie on her side and drink water -- when they were in the office. That year, Christmas landed on a Wednesday. It would be one of those holidays where the whole week slides into inertia as people take off the Monday before Christmas Eve to round out their weekend or the two days after Christmas to extend a New Year’s vacation.

Over the next several days, Lech would puncture those two weeks of holiday-level staffing by approaching guards — to let her go to the medical office — and nurses when she managed to reach them, and bringing the cup with her whenever she asked to see the medical unit to show them her concerns.

Then they turned up the pressure to keep Lech away. Nurses called her ‘overbearing” and told her she’d make a terrible mother.
On January 1, 2014, during a head count, Lech felt fluid gush between her legs and severe cramping doubled her over. She called for help through the intercom in her cell and a guard responded that she needed to wait until counting was over.

The guard rang back in when the count had cleared, asking:

“How bad are your symptoms? The nurses need to know if this can wait ‘til morning.”

Lech’s cellmate started screaming. Another fifteen minutes later, the clack of the cell door unlocking signaled to Lech that she could now leave and head over to the medical unit. Even though she struggled to walk, no one sent a wheelchair to bring her to the unit. At the unit, she waited another hour, muttering “He’s gone, He’s gone.” Again, nurses refused to send her to Baystate — until they tried to monitor her son’s fetal heartrate and could detect only hers.

Her son Kaiden was stillborn on January 2, 2014. His body was macerated which meant that he had already died, an unknown number of days prior.

Prisons and jails are prisons and jails. Although they’ve been called de facto hospitals as part of the criticism of policies that contribute to mass incarceration, they are not designed to provide medical care, certainly not the care that a high-risk pregnant woman needs.

As much as 40 percent of a corrections budget is for care provided outside the prison or jail according to analysis by the Pew Charitable Trusts and the Vera Institute of Justice.

The only way to access that outside care is for someone at the correctional facility to agree that the detainee needs care that’s not available in the facility; inmates can’t access these resources on their own.

Off-site services supplement on-site care which is delivered through one of four systems: direct model (state and municipality-employed corrections department clinicians provide all or most on-site care); contracted model (clinicians employed by one or more private companies deliver all or most on-site care); state university model (the state’s public medical school or affiliated organization is responsible for all or most on-site care); and the hybrid model (on-site care is delivered by some combination of the other models). States and municipalities vary in the methods and often change them; monitoring the delivery methods of all state prisons and municipal jails is next to impossible.

Depending on the model of on-site care, the role and responsibilities of the person who approves a detainee for off-site care changes.
Medicaid coverage changes the incentives and realities in off-site correctional healthcare. Since the Medicaid Inmate Exclusion Policy (MIEP) was established in 1965, Medicaid has been allowed to cover the costs of inmate inpatient hospitalizations that last more than 24 hours. Jails and prisons can save money if they can arrange for their wards to be treated at local hospitals — if they’re willing to risk the cost of the consult.

Matthew Loflin was arrested for drug possession in Savannah, Georgia around the same time that Lidia Lech lost her son nine states to the north. Symptoms for his cardiomyopathy crept up on the 32-year-old man while he awaited trial in the Chatham County Detention Center. He was coughing, often to the point of blacking out.

Despite the jail doctor’s recommendation, none of the empowered decision-makers at the facility— which contracted with Corizon for care — would let Loflin be seen at the hospital, even though the likelihood that he would be admitted was high. Medicaid would pick up that tab, if he were to reach a hospital. He didn’t, at least not in time. He died in April 2014.

“The for-profit medical provider had no intentions of treating him because cardiology appointments outside of the jail would cut into their profit margin. One of his jailers called his pain and anguish ‘fussy,’” Loflin’s mother Belinda Maley told the Senate Permanent Subcommittee on Investigations in September 2022 when it held a hearing on unreported jail and prison deaths.

Loflin was admitted on an inpatient basis, making his death even more senseless. But not all incarcerated patients are admitted; the decision to admit a patient is entrusted to the hospital staff. So a referring agency takes a risk by sending one of its wards to a specialist or hospital. If the detainee is admitted, then the hospital can submit a bill to the Centers for Medicare and Medicaid and expect reimbursement.

However, if the attending physicians decide not to admit the patient and the patient is there for less than 24 hours, then the jail or prison has incurred a bill. One sheriff of a county in Florida agreed to discuss this matter on the condition of anonymity. He said: “I won’t lie. Whether one of our inmates is sick enough to be admitted is a big factor in our decision to send them to a local hospital for evaluation or treatment. The thing is, neither [I] nor any of my deputies know how sick an inmate really is. But we are mindful that, if they get sent right back to us, we’re going to be paying thousands for that trip.”

And it’s not always the case that local hospitals welcome these patients. Off-site care is wracked with security concerns that usual prison/jail healthcare is not in that it brings someone who is in the physical and legal custody of the government into a setting that is not designed for that custody.

The Bureau of Justice Statistics doesn’t track the site of escapes from correctional custody; the agency only counts the events where someone leaves custody illegally. It should surprise no one that most escapes occur from hospitals or transport to medical appointments that aren’t in the correctional facility. During the past summer, seven people escaped from custody from medical establishments between August and October.
When interests are aligned, as they are in systems where the state university medical system provides care in correctional facilites, Medicaid coverage can improve outcomes for prisoners.
Lynn W. (her last name is being withheld for privacy reasons) was diagnosed with breast cancer while she was incarcerated at York Correctional Institution in Niantic, Connecticut. To receive the chemotherapy she needed, she had to go to the UCONN Medical Center in Farmington every weekday.
She made the 54-mile trip by traveling with the women who were due in court that day. She would wait to board a bus in freezing, predawn temperatures without a coat (not allowed on transport). Corrections officers would drive them, handcuffed and shackled, to the Hartford Police Department. From there, officers from the prison unit at the John Dempsey Hospital (the University of Connecticut’s hospital) would pick her up from the police station and bring her and any other women with appointments at UCONN that day to the hospital.
After these appointments, the same guards would return the women to the Hartford Police Department where they would await all other women who appeared in court that day — and the women who were newly remanded to custody — and, as a group, they would pass the time until the York guards came back, cuffed and shackled them and drove a bus (or two) with all of them back to the prison. Sometimes they didn’t return to York Correctional Institution until 11 p.m. — and Lynn would be woken at 3:30 a.m. the next day to start the process all over again
One day, she told her oncologist she was quitting.
“I don’t want the chemo anymore,” she said.
“Why?” he asked her. “This particular treatment works well with your cancer. I’m hopeful that after a few weeks of this, your cancer will be gone forever. Remission. Why would you stop it now? Is it the side effects?”
“No, it’s the ride. I haven’t slept more than two hours a night since we started. Even if you cure my cancer, I’ll be dead anyway.” She proceeded to explain the process of getting off-site care.
After a quick call from her oncologist, the Centers for Medicare and Medicaid approved Lynn’s inpatient stay. The doctor broke the news to the medical office at the prison.
“She’s not coming back,” he told the nurses in the medical unit. He didn’t mean she would die. He meant she would live, stay at the hospital while she received the full course of treatment. Connecticut is one of three states that use a state university model. Lynn slept even better than she would have in the prison, and was returned to custody.
Lynn is home today, married, and working. Her breast cancer has been in remission since 2011.

Hospitals And Jails Are 'Insurance-Free Zones'

Jails are filled with low-income people who can’t afford to post bond. Two-thirds of people detained in jails report annual incomes under $12,000 prior to arrest. Despite the thoroughness of the indigency of an incarcerated population, in Washington State, jails are required to gather information about the person’s ability to pay for medical care as part of the intake process, including whether the person has insurance. Additionally, at sentencing, courts are authorized to require an individual to repay their medical costs based on their ability to pay.

Ever since January 1, 2014, when the Affordable Care Act required all Americans to have health insurance coverage through the individual mandate and permitted “all qualified individuals” to purchase qualified health plans through their state’s health insurance exchange, inquiry about an individual’s ability to pay their medical costs while incarcerated has become a part of the sentencing process in many jurisdictions.

It’s a futile inquiry; prisons and jails are insurance-free zones. Exchanges don’t permit prisoners to apply for coverage. Even if they apply, secure approval for, and purchase a plan to use during a short term of incarceration, the providers in prisons and jails aren’t in insurance networks. Incarcerated patients not only lack the freedom to choose providers, make appointments, and enter a medical office, they have no way to cover the care they need. They are at the mercy of decision-makers who often have different agendas regarding their health.

That complete lack of insurance coverage shows where correctional healthcare intersects with “legal financial obligations” or LFO’s, the aspects of prosecution and incarceration that prisoners have to pay for themselves. Even the Fines and Fees Justice Center (FFJC), an organization dedicated to stopping the overuse of fines and fees does not know which states would consider medical care an LFO.

'How Can A Medical Debt Become A Jail Debt?'

Very recently, medical debt almost became an LFO.
An infection was all that Robert Lambert had. At home, he would have gone to a local pharmacy and purchased a few items to see what worked. If it got worse, he’d ask friends and family for advice.
But he couldn’t do that. He was in Kittitas County Corrections Center (KCCC) awaiting disposition of his charges. He asked to be seen at “Sick Call,” the medical unit’s office hours; detainees need to wait to be called. They can’t attend at will. Getting to see a provider in KCCC was difficult for Lambert. At the time, the county contracted with Comprehensive HealthCare for a nurse to be on site for three hours every other Thursday, approximately six hours per month, less than one workday, to meet the healthcare needs of around 200 people.

It took so long to get to Sick Call that Lambert’s infection worsened. He was brought to Kittitas Valley Hospital (KVH) every day for days for intravenous antibiotic treatment to kill the infection, the bill for which was $21,152.8. KVH discounted its services by 46 percent, down to $11,422.52. It was a large invoice to be paid, and also likely an unnecessary one if Lambert had received care in a timely fashion.

KCCC officials shoved a stack of receipts (not a detailed medical record) and claimed he owed the jail $11,422.52, the same amount KCCC had paid the hospital. On the day that Lambert was to discharge, the jail added $1398.07 in interest to the bill, making the total owed $12,820.59. He looked at his inmate account, the funds he used to buy commissary.

$0.02, it read.

“Like many other people in jail, I didn’t have a job, I didn’t have savings, I didn’t have any way to even make small payments on that amount they said I owed,” Lambert said. To make matters worse, the jail sent the bill for collection.

“How can a medical debt become a jail debt?” he asked in his grievance. The short answer was that, under Washington law, it can’t. The Revised Code of Washington Section 70.48.130 clearly states that the “governing unit” is responsible for medical debts incurred when someone is in custody. In April 2023, a judge held that Lambert wasn’t obligated to pay the bill but KCCC was.Lambert’s situation might have been prevented if the hospital had admitted him for 24 hours. Under those circumstances, Medicaid would have paid the bill. Representatives for Kittitas Valley Hospital could not comment on this individual case citing medical privacy laws.Allowing Medicaid to cover incarcerated persons’ healthcare is less an issue of payment than it is of policy, a policy that can change the care received by everyone in confinement.

How Private Prison Health Care Rips Off Government (And Why Medicaid Works Better)

“For the first time in the history of Jefferson County Sheriff’s [Office], we have coverage ‘round the clock, even on midnights. There [are] licensed RNs, LPNs, and PAs that are taking care of the incarcerated individuals. They are getting the proper care,” said Jefferson County, New York Sheriff Peter Barnett.

The Jefferson County Sheriff’s Office recently contracted with PrimeCare, a private Harrisburg, Pennsylvania-based company that provides healthcare to incarcerated populations.

Barnett described that contract as “the biggest thing that could have happened.”

“I consider this a huge accomplishment for the taxpayers, the incarcerated individuals, and the staff down at the correctional facility,” he continued. The contract with PrimeCare is the largest budget line item for the county in 2024 — $3 million.

“The liability for this medical coverage is huge right now. I look at it as a bigger umbrella for the taxpayers. Let’s face it, we’re either going to pay upfront with PrimeCare, or we’re definitely going to pay in the long run in lawsuits,” the sheriff said. Barnett’s excitement notwithstanding, however, Jefferson County is an example of how detainees’ medical care becomes subpar or gets denied outright.

It’s a cycle that starts with a local sheriff’s budget proving insufficient to meet the healthcare needs of an incarcerated population. Researchers at Western Carolina University found that two-thirds of jail detainees (as opposed to people incarcerated in prisons) meet the criteria for diagnosis with substance use disorder and nearly half present symptoms consistent with a mental illness -- with that illness often causing them harm or even ending their life (suicide is the leading cause of death in jails, according to the Vera Institute of Justice). Such incidents in turn lead to detainees and their families filing suit against the municipality.

The next step in the cycle is the contract. Because private correctional healthcare providers include indemnification clauses in their contracts — that is, they agree to accept liability and pay the sheriff’s legal bills if they become the chosen provider — their services become attractive for reasons other than provision of care.

In exchange for that indemnity, states and municipalities then enter into contracts with these companies. The“risk sharing” model of correctional healthcare — either flat fee contracts like the one in Jefferson County, New York, or capitated contracts where sheriffs pay these contractors a fixed per-person rate — ends up providing even worse care. The further substandard care sets off still another wave of litigation, this time against the healthcare provider and the municipality, as detainees suffer lifelong injuries and families grieve.

This cycle doesn’t benefit many people at all. And it highlights the unique potential of a special Justice Department Medicaid 1115 Waiver demonstration project to render private healthcare companies uncompetitive.

Private Correctional Healthcare Is No Bargain

Privatization of prison health care started in the 1970s. By 2009, approximately 40 percent of correctional health expenditures were paid to private companies. That year, then-Chairman and CEO of Valitas Health Services Richard Miles told the St. Louis Business Journal: “We think the idea of outsourcing this type of service will be an attractive option as states try to cut budgets.”

Budget cutting through risk-sharing models turned out to be less than ideal for detainees, counties, and companies.

The biggest correctional healthcare provider, once named Corizon Health Inc., is now split into two companies named YesCare Corporation and Tehum Care, Inc.. Corizon availed itself of a controversial Texas law that allows a “divisional merger” — sometimes called the “Texas Two-Step” bankruptcy law — to split into two and assign liabilities to one company that files for bankruptcy and keep assets in another that remains solvent. YesCare took off with all the assets and Tehum got saddled with the debts.

Corizon — by any other name it’s still Corizon — used to operate in 27 states, covering about 350,000 of the nation’s incarcerated population. The Southern Poverty Law Center pegged its profits at $1.4 billion in 2016. Corizon used a capitated system where the company was paid per head for an overall population.

To save money, Corizon tried strategies such as cutting medical staff and refusing to refer sick prisoners for outside medical care. These ploys went to extremes; in some facilities, there was no one available to provide care.

Then the substandard care provided by the company caused it to lose 25 contracts. New York City, Arlington, Virginia and Bernalillo County, New Mexico are just a few of the municipal entities that dumped Corizon because its care was either non-existent or so bad that their wards were dying. The company lost statewide contracts in Michigan, Kansas, Missouri, Tennessee, Idaho and Virginia. Now it operates in only 15 states, and has lost 60 percent of its revenue, about $900 million, but it's still the provider for 139 state prisons, local jails, and other facilities.

The number of complaints against the company has risen drastically. In general, these aren’t frivolous claims. Multimillion-dollar judgments aren’t uncommon; last year a man’s family won $6.4 million for Corizon’s failure to treat his delirium tremens as he withdrew from alcohol abuse. Corizon settled many other claims for seven figures.

“At the end of 2021, Defendant Corizon Health, Inc. faced dire financial circumstances. Years of mounting costs, including litigation expenses relating to claims asserted by incarcerated individuals, threatened Corizon Health’s ability to continue as a going concern. Corizon Health was deeply insolvent…,” lawyers for the company argued.

More losses await. In federal courts alone, 326 lawsuits are pending against Corizon, 22 against Tehum, 34 against YesCare; and YesCare incorporated only last year.

Corizon is getting the most attention now because of its bankruptcy filing — and some salacious details like the judge’s romantic involvement with one of the lawyers, and allegations that Tehum’s owners are engaging in bankruptcy fraud.

But private prison healthcare providers in general have been losing business for a while. The State of Florida canceled a contract with Wexford Health Services in 2017. Florida-based Armor Health Management is liquidating its assets because it’s underwater.

Since their bids — and the subsequent human and financial losses that inevitably follow from contracting with them — make these companies less than competitive, they should have folded years ago. But fraud, bid-rigging, and a complete lack of due diligence have kept them afloat artificially.

Health care services provider Health Assurance, LLC paid bribes for years to Mississippi Department of Corrections Commissioner Mike Epps’; Epps and Health Assurance’s owner were both sentenced to federal prison for bribery. Last year the CEO of Wellpath, a Corizon competitor, pleaded guilty to bribing a Norfolk County, Virginia sheriff to get contracts. In a galling move, Corizon tried to indemnify Alabama’s last Commissioner of Corrections, Jefferson Dunn, as a former consultant on a $1.6 billion contract with the state; the indemnification suggests he was on both sides of the negotiation.

Corizon knows the entire process is dirty, so dirty that they’ve been victimized by the corruption themselves. Corizon sued the state of Tennessee when the company found that its financial officer was leaking data to a competitor. When Corizon lost a contract in Missouri, it sued the winning company, Centurion.

And the indemnification promises have been broken. Corizon left the City of St. Louis with a $515,000 tab when the family of 26-year-old DeJuan Brison, a man who hung himself in the city jail, won a judgment for wrongful death. Part of the contract with Corizon required the company to keep adequate insurance and defend and reimburse the city for any lawsuits. The city sued Corizon/YesCare this summer and said Corizon’s “refusal to indemnify the city in the lawsuit was baseless and in bad faith.”

The bad faith is not limited to the Gateway to the West. Corizon/YesCare also won’t indemnify three nurses in a case against itself and Kent County, Michigan, where a man named Wade Jones died of acute intoxication at the Kent County jail. The three nurses are appealing multi-million dollar judgments that were entered against them personally. If they lose that appeal, they will spend their lives paying off the judgments with no assistance from the company that made off with the profits.

At this point, other sheriffs don’t share Sheriff Barnett’s enthusiasm for outsourced care.

"The model doesn't work in Barnstable County," said Sheriff Donna Buckley said when she decided not to renew a contract with the provider Wellpath earlier this year. Instead, the Barnstable County, Massachusetts jail will hire clinicians directly for its facilities on Cape Cod.

"We can not be caught in a situation where we knowingly are unable to provide medical and mental health services and putting people who are sent to us in a worse position upon release," Buckley told Boston news station WBUR last summer. Buckley declined an interview request to explain more.

Sheriff's Support

Medicaid 1115 Waiver Demonstration projects — and ditching private healthcare contracts — have support from sheriffs, which is unusual. For the most part, sheriffs’ offices tend to support more punitive policies. Especially in jurisdictions that are Republican strongholds, such “tough-on-crime” policies tend to win elections. Many of these law enforcement officers are members of the Constitutional Sheriffs and Peace Officers Association, a group whose members believe that “county Sheriffs have the authority and duty to enforce the constitution and to protect their citizens from the overreach of an out-of-control federal government.”

Yet entitlement programs don’t spin the government out of control in these sheriffs’ eyes, mostly because allowing Medicaid to cover inmates’ healthcare will erase their budget woes. They support Medicaid expansion in general because if able-bodied adult males can enroll in the federal healthcare program, jails and prisons can at least try to set up appointments for them when they’re released. People who enroll in Medicaid prior to release from custody are more likely to make appointments, keep appointments, and secure needed medication than those who enroll after release.

As Collin County, Texas Sheriff Jim Skinner — also the chairman of the Government Affairs Committee of the National Sheriff’s Association — explained this to the Texas Legislature in 2018:

“There must be some overlap of benefits/services during periods of incarceration...The documents required for enrollment are frequently unavailable during incarceration and too cumbersome. The delays can also result in the defendant running out of medication before services can be initiated,” Skinner wrote in legislative testimony. But so far Texas has not expanded Medicaid nor has the state applied for a 1115 waiver to cover justice-involved populations.

States that haven’t expanded Medicaid are still allowed to apply for a Justice Involved 1115 Demonstration waiver so sheriffs in the 10 states that haven’t expanded Medicaid aren’t left out of the experiment. However, none of those 10 states have applied for the Medicaid 1115 waiver for their prisons and jails.

Mecklenburg County, North Carolina provides a great example of why sheriffs want Medicaid to be able to cover the healthcare of people in prisons and jails. The state recently expanded Medicaid, and Mecklenburg County has become a more blue area in the largely red state. After Trump was elected in 2016, the county turned leftward in response. The county has successfully worked to reduce incarceration and even implemented some progressive programs. In August 2019, the Mecklenburg County Detention Center became the first jail in North Carolina to have an inpatient psychiatric program.

But Mecklenburg County also reveals the reality of caring for detainees. As the jail population has decreased — the COVID-19 pandemic helped that reduction along — the county has spent more and more on healthcare. The annual cost of healthcare has almost doubled in the past ten years, rising from $4,277 to $7,478 per person in eight years.

“[T]he problem is that the joint federal-state financing of Medicaid and the eligibility standards combine to push a disproportionate share of the health-care costs for persons who are inmates of county jails to counties. Sheriffs have the supervisory burden but practically no funding authority,” wrote Sheriff Jim Skinner in a memo to the author.

Skinner knows: It’s not necessarily that there are more detainees needing care, but that the detainees who come in are sicker than before. From 2025 to 2018, Collin County contracted with Southwest Correctional Medical Group, Inc. (SCMG) to provide care for 1010 detainees at $4793 per detainee; if the jail population rose over 1010 people, Collin County agreed to pay more for each person.

At the time, Skinner faced significant challenges when it came to detainees with mental health conditions. In 2018, the jail had 24 medical beds, four of them designated as mental health beds. On one particular 2018 day, Skinner was housing 27 inmates who qualified for inpatient psychiatric care. The overflow forced Skinner to convert a segregation housing unit into a secondary infirmary. The contract with (SCMG) was fixed, on a per person basis. That the same population needed more care wasn’t something he could fix.

Opposition From Unlikely Places

If the sheriffs are for it, then who can be against a Justice Involved 1115 Demonstration waiver?

The answer to that question is: many people. While their opposition isn’t explicit, many social justice advocates are wary of the waivers. Sometimes this opposition springs from a disability rights perspective, and sometimes it comes from health equity and racial equity perspectives.

“Right now the states are on the hook for the health care costs, so they have a disincentive to take that homeless person who is naked in the public park. They have a disincentive to lock up that person long term because they're going to have to pay the health care costs so they have some incentive to keep that person in the community,” said Mira Edmonds, a Clinical Assistant Professor of Law at the University of Michigan Law School.

“Because the disability rights community and some health equity rights communities are so focused on keeping care in the community that they're very concerned about or opposed to the notion of breaking down the inmate exclusion,” Edmonds explained.

It’s not clear that such a financial calculation by government occurs at the time of arrest. However, evidence that healthcare needs aren’t met in carceral spaces is abundant.

This article was supported by a fellowship from the Commonwealth Fund through the Journalism and Women Symposium (JAWS).

Chandra Bozelko served more than six years in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent. Her work has earned several professional awards from the Society of Professional Journalists, the Los Angeles Press Club, The National Federation of Press Women and more.Her columns now appear regularly in The National Memo.

Will Supreme Court's Right-Wing Justices Deprive Prisoners Of Health Care?

Admittedly, the high-shine concrete molding that lined the walls and met the floors overly waxed by inmates in the commercial cleaning program lost some of its luster, but workers at Osborn Correctional Institution in Somers, Connecticut were shifting. Only the ones who were deemed essential were going to work in the coming days.

It was March 2020 and an infectious pandemic was on its way inside. Only those men who fed the inmates or whose work could help slow the spread of this novel disease would be working soon: kitchen workers, some cleaners, and the men who ran the laundry and washed the sheets and blankets the men used on their bunks.

Above that dulled concrete, on an aluminum tabletop, rested the shoes of Captain Daniel Perez who was announcing the plan. Osborn’s Deputy Warden Nicole Thibeault stood by him as he explained. Laundry workers would move from E-Block to H-Block, a move no more than 100 yards but still worlds away now that the SARS-CoV-2 virus traveled among men. In E-Block, the laundry workers could shelter and essentially quarantine from each other in their single cells with bolted doors. But in H-Block, the cells were constructed of bars with inches of space between them, open invitations for the new coronavirus to travel.

“Any questions? Thibeault asked after Perez finished his explanation.

Inmate Barry Guess piped up.

“Yes. My name is Barry Guess. I got a question. If I'm already in a single cell setting — no cellie, no possible way to have someone giving me COVID — why move me to a block that's open with a cell that's open, where I can possibly be given COVID or infected?"

Thibeault provided perfunctory answers but warned that if people refused they face disciplinary action and the loss of their single, ostensibly safeguarded cell anyway.

No Personal Protective Equipment (PPE) was provided to the laundry workers; they made masks themselves. As a result, all except one laundry worker contracted COVID — and that one exception wasn’t un-infected. He simply wasn’t tested. The first inmate to die of COVID-19 in Connecticut was a laundry worker at Osborn. Neither Thibault nor Perez let the other workers know that “Doc” — as the other inmates called him — had passed.

Eventually, the Department of Correction transferred the men to Northern Correctional Institution, the state’s death row when the death penalty was still in effect, but the laundry workers weren’t allowed to bathe for thirteen days — because administrators said they feared COVID would be caught in shower mist and spread.

Christoper Nazario, a laundry worker who suffered a heart attack because of his COVID infection and who has since been released, sued Thibeault, arguing that she and the State of Connecticut exposed him and the other laundry workers to an unreasonable risk of serious damage to their health and, in so doing, violated the Eighth Amendment prohibition on cruel and unusual punishment. Seven other laundry workers, including Guess, followed with their own claims. The district court in Connecticut united all eight plaintiffs into one case because their complaint was the same: the Department of Corrections intentionally disregarded their health.

Thibeault responded by moving for summary judgment, arguing that there was no dispute that required a trial. According to Thibeault’s attorneys, the attorneys general for the State of Connecticut, corraling people together so they could contract COVID and die was never cruel nor unusual punishment and even if it were, Thibeault and other state employees can’t be held accountable for it because they work for a government agency.

Last June, United States District Court Judge Vanessa L. Bryant denied Thibeault’s motion for summary judgment, an order that means one thing legally — that the facts and the law are in dispute and need to be resolved through a trial — and another thing factually. Bryant’s decision means that moving prisoners into areas that increased the likelihood that they would contract COVID might be cruel and unusual punishment, that those moves might have been what the courts call deliberate indifference, and that Thibault’s position that prisons and jails can’t be held accountable for these administrative choices isn’t necessarily correct. Bryant’s decision means that the law and standards for care may change with Nazario’s case.

Bryant’s decision wasn’t good news for Thibeault. Unless the state settled the case, a trial would ensue. Witnessed would testify. he state’s COVID response would be on public display. Thirty inmates died of COVID in Connecticut prisons before July 2022 when the state stopped publicly reporting the deaths. It sounds like it isn’t many. With the state’s entire population at its lowest at 8945 in June 2021, 30 deaths create a death rate of three-tenths of a percent. By comparison, a little over one-tenth of a percent of the United States population died of COVID-19. The Connecticut inmate rate of death is twice that.

About a month later, on July 29, 2022, Thibeault filed an interlocutory appeal — an appeal that happens before a case is over — to keep the case from proceeding to trial. Lawyers argued that interlocutory appeal before the Second Circuit Court of Appeals last week in New York and, depending on the outcome in a few months, one side or the other will appeal to the Supreme Court of the United States. And what’s worse is that the nation’s highest court may take it.

Traditionally, the problem of lack of health care, substandard care, or conditions that endanger health was cured by the courts. A 1976 Supreme Court case, Estelle v. Gamble, established the law that the Eighth Amendment requires prisons and jails to provide adequate medical care to people in their custody. Through this decision, Inmates are the only population in the country who have a constitutional right to healthcare.

While litigating claims of health is far from ideal — it’s not fast so there’s really no way to compel correction officials to provide emergency care — it has worked in the past. For example, Santa Clara County, California has faced litigation several times and paid out large settlements. The county has made significant improvements to how it provides medical care to its wards and is now considered an example of quality correctional care.

But litigation’s power to address failures in correctional health care may soon change. Given the current Supreme Court’s willingness to overturn established precedent as evidenced by its complete reversal on Roe v. Wade last year in the Dobbs v. Jackson Women’s Health Center decision — an opinion authored by Justice Samuel Alito — there’s reason to fear that the nation’s highest court may be looking to overturn the precedent established in Estelle v. Gamble once the right case reaches their docket.

The chances that the parties won’t at least knock on the door at the Supreme Court is zero; either the laundry workers or Thibeault will lose at the Second Circuit Court of Appeals and whoever does will try to get the nine justices to side with them before they head back to a New Haven courtroom.

Lynn Hamlet already beat the laundry workers to the Supreme Court on these issues. Hamlet, an elderly man incarcerated at Florida’s Martin Correctional Institution, is diabetic and had a cut on his ankle. He was forced by a correction officer into a shower that had backed up with another inmate’s feces. The guard, Brandon Hoxie, didn’t allow Hamlet any cleaning materials to wash his wound and denied him access to the showers. Hamlet developed an infection that eventually caused him to need emergency surgery on his heart.

Unlike Nazario and Guess’ case, the lower courts in Hamlet’s case held that it was a foregone conclusion that the deputy warden was immune from suit and that it was acceptable to ignore inmate health concerns.

The difference in holdings is a problem. Hamlet’s case is out of the Eleventh Judicial Circuit. Nazario’s case is in the Second Circuit, which means inmate healthcare and qualified immunity for the officials who are deliberately indifferent to an inmate’s needs has become a constitutional issue on which federal circuit courts are split. The Supreme Court likes curing those fissures. It’s cause for them to accept the case, especially if they’re anxious to toy with precedent they don’t like.

The justice who’s shown the most disdain for the right to be free from cruel and unusual punishment is Alito himself, author of the Dobbs opinion. He proved it ten years earlier in his dissent in the case Miller v. Alabama. Alito’s 2012 departure from the majority’s view was that mandatory life-without-parole sentences for youthful offenders shouldn’t be unconstitutional.

Alito didn’t hold back, writing: “[t]he Court long ago abandoned the original meaning of the Eighth Amendment…” Alito quarrels with the idea that what constitutes cruel and unusual punishment should be tied to “evolving standards of decency.” In 2015, in the case of Glossip v. Gross, Alito argued that excruciating pain inflicted from botched injections isn’t inhumane because death itself is inhumane.

Given that the climbing cases are setting up a perfect showdown on Eighth Amendment jurisprudence, it’s entirely possible that the Court will soon gut and overturn Estelle v. Gamble, giving prisoners little to no grounds for relief in the courts when they are denied medical care or abused in ways that compromise their health.

The remedy for any change in precedent may lie in an experimental program that mostly has to do with care when a prisoner is freed.

In January 2023, the Centers for Medicare and Medicaid Services (CMS) approved the first waiver to the Medicaid Inmate Exception Policy (MIEP) in the Social Security Act. The waivers, granted under the Medicaid Reentry Section 1115 Demonstration Opportunity, allow prisons and jails to enroll people who are due to leave custody in the next 90 days in Medicaid and also provide substance abuse treatment while they’re still incarcerated.

Because approximately 80 percent of people leaving prisons and jails have chronic medical, psychiatric, or substance use disorder problems, experts agree that these waivers have the potential to improve the health of people reentering society and prevent them from relapsing or re-offending.
At first glance, it doesn’t appear that such a waiver would have done any good for the laundry workers or Hamlet but that’s a misperception. The irony of inmates being the only population to have constitutionally guaranteed healthcare is that they’re also the only population for whom there isn't a universal, mandatory standard of medical care.

The National Commission on Correctional Health Care (NCCHC) issues standards for care for confined people but compliance with them is voluntary. Malpractice, as it were, doesn’t exist in these facilities, and not because medical care is optimal. Malpractice is a dereliction of professional duty or a failure to exercise an ordinary degree of professional skill; as a practical matter there’s no duty to inmates and the ordinary degree of professional skill can be so low that any care provided meets or beats it. Inmates who are harmed must argue that their civil rights were violated to access the courts; suing for malpractice in tort is next to futile.

Once a waiver is approved for a state and is implemented, the standard of care for jails and prisons becomes Medicaid’s standard of care, according to Dan Mistak, President and Director of Healthcare Initiatives for Justice-Involved Populations at Community Oriented Correctional Health Services, an organization that has long advocated for changes in the MIEP.

In the cases ascending the appellate ladder, the problem becomes less that the deputy warden moved the laundry workers and more that the providers needed to prevent Nazario’s COVID infection from affecting his cardiovascular system and ensure adequate protective gear. Instead of the problem being a guard leaving inmate Hamlet in a dirty and infectious shower, the problem becomes his wound and how it should have not developed in the first case with proper diabetes care. In short, prisoners won’t need to use the Constitution to protect their health because there will be new regulations in place, even if those regulations target those who are rejoining society.

The Medicaid Reentry Section 1115 Demonstration Opportunity waivers have been approved for two states so far: California and Washington; neither state has started their demonstration yet but the way these waivers will import oversight and standards to carceral spaces, they may end up preserving the health of more prisoners than intended.