How the Legislature eliminated the state’s prison health care watchdog

In January 2007, a woman was diagnosed with vulvar cancer while she was held in a Florida jail. The doctors had scheduled a follow-up evaluation, but she did not receive treatment before she was transferred to Broward Correctional Institution.

That June, a cancer specialist recommended a consultation with a gynecological oncologist “ASAP,” according to a report by the Correctional Medical Authority. Months later, and after two additional orders for “emergency” consultations, the inmate still had not been treated. She finally received a biopsy the following January — one year after the original diagnosis — after missing appointments due to a “transportation error” and other delays.

The patient’s case was one of several dramatic ones cited by the medical authority, or CMA, in its 2007 evaluation of health care services for inmates at Broward Correctional Institution. The report contained multiple emergency notifications for immediate action by the department, one which cited “medical conditions not being identified in a timely manner, unacceptable delays in evaluation, diagnosis, and treatment, and lack of appropriate follow-up,” for inmates with a variety of health problems, some of them life-threatening.

The report also noted that corrections had been ”unsuccessful in addressing these significant problems,” though the department had been taking new steps to deal with them, and its efforts intensified around the time of the CMA’s report. A few months after the CMA’s initial survey of the Broward prison, a follow-up report found “significant improvement” in the way medical treatment was handled at the facility, which in recent years had seen high turnover and a transition between private health care providers.

Courts have repeatedly found that inmates in state prisons are entitled to medical care that is “responsive to contemporary standards of decency” to comply with the Eighth Amendment of the U.S. Constitution, which forbids the cruel and unusual punishment of prisoners. Since the early 1990s, when a court settlement allowed Florida to police its own prison health care system after years of federal intervention, the CMA has served as an independent watchdog that has helped to ensure those standards are met, sometimes uncovering problems that do not get addressed by the department’s internal controls.

The watchdog group closed this year, with little public debate and over objections from several lawmakers, as well as the office of Gov. Rick Scott, which had been working behind the scenes to rescue the agency before finally, it closed earlier this month.

Among those leading the charge to eliminate the agency was state Rep. Matt Hudson, a Naples Republican who oversees health care appropriations in the House.

He said that health care in Florida’s prisons has improved dramatically over the past few decades, which the CMA’s supporters do not dispute. Given the improvements, Hudson identified the CMA’s six employees and its $717,680 budget request as an opportunity for cost savings. The CMA typically conducts scheduled inspections of state prisons every three years, and Hudson said lawmakers decided “paying for an agency that oversees a facility every three years doesn’t seem to be that productive.”

Supporters of the agency have countered that it provides crucial oversight between inspections, such as helping to watch over the department’s efforts to correct the problems it uncovers. They also note that inmate health care — and the state prison system as a whole — are preparing for a period of upheaval, as the state moves to privatize health care services in three regions and prison operations throughout the state’s southernmost 18 counties, moves that are intended to save money.

“We need it now more than ever,” said state Sen. Mike Fasano, a New Port Richey Republican who oversees criminal justice spending.

At one of the agency’s final meetings this spring, the board recapped (.pdf) its presentation to Rep. Hudson’s committee:

The CMA performs a risk management function that ensures quality of inmate health care does not fall below constitutionally mandated standards.

Federal courts have directed that the state is responsible for providing medical care to inmates in the state prison system that is consistent with community standards of care. The CMA assists the Department in identifying mechanisms to provide cost effective health care to inmates consistent with those standards.

Progress in developing the health care service delivery system in the Department of Corrections (DOC) is the product of 21 years of litigation and court oversight of inmate health services stemming from the Costello case.

The resolution of the lawsuit resulted from a final settlement agreement requiring the creation of an assistant secretary for Health Services within DOC and the creation of the Correctional Medical Authority to provide an ongoing, independent review of DOC’s provision of health services.

Hudson was not convinced that the agency should be kept in place. In a subsequent interview, he said the Department of Corrections will be able to write health care standards into its contracts with private providers and hold the private providers accountable.

Fasano questioned whether the department will have the resources to perform the CMA’s functions. More importantly, the department’s internal inspectors will lack its independence. Both he and Sen. Arthenia Joyner, a Tampa Democrat who has called for the agency’s resuscitation, have said that internal supervision without an independent watchdog amounts to “the fox watching the henhouse.” Prison officials will be policing themselves.

As the bipartisan Commission on Safety and Abuse in America’s Prisons noted in its final report: “Corrections leaders work hard to oversee their own institutions and hold themselves accountable, but their vital efforts are not sufficient and cannot substitute for external forms of oversight.” Gov. Scott displayed similar logic in May when he vetoed a conforming bill that would have done away with the CMA, saying it would be “unwise” to remove such a “valuable layer of oversight.”

“The continuing reporting of findings in CMA surveys indicates continued oversight of the prison health care is necessary,” he wrote in his veto message (.pdf).

One of those recent findings (.pdf), from August 2010, cited the use of psychiatric restraints on inmates at Lake Correctional Institution:

In one case, the documentation indicated restraints were authorized because the inmate refused to come out of his cell. In the second case, documentation indicated the inmate was placed in restraints for grabbing an officer’s arm; however no further aggression was noted. In addition there was no documentation that less restrictive means of behavioral control were attempted prior to the application of restraints.

The report went on to note that it is “standard practice in the community as well as correctional settings for psychiatric restraints to be utilized only as a last resort; when all other less restrictive means of controlling behavior have been determined to be ineffective,” and that improper use of restraints has caused “severe trauma or even death,” which have been the subject of lawsuits against correctional systems in other states. The CMA’s findings prompted closer scrutiny of the facility by corrections officials, as well as retraining of prison staff and a revamp of internal controls at the prison.

After his veto, Scott’s efforts to preserve the CMA hit a wall. Lawmakers had not given it any funding. The Senate had funded the CMA in its budget proposal, but after several rounds of negotiations in the final days of the legislative session, it was removed.

This summer, then-Corrections Secretary Edwin Buss approved a plan in which the department would have donated six staff positions to keep the CMA running through this fiscal year, but that plan had to be approved by the Legislature. The House delegation to the Joint Legislative Budget Commission, of which Hudson is a member, objected.

Hudson said the Legislature had made its intent clear when it approved his bill ending the CMA, and that neither the governor’s office nor Buss’ had given him any compelling explanation for why it should have been preserved. He added that he was not surprised by the efforts within the executive branch to rescue the independent watchdog.

“Most state agencies like to be bigger state agencies,” he said.

Scott spokeswoman Amy Graham said that because agencies had shifted resources around to preserve the CMA and employees had volunteered to take pay cuts, the rescue plan would not have cost the state any money.

The CMA’s nine-member board held its final meeting on Aug. 10. Eight days later, the department’s outgoing executive director emailed members of the board to inform them that, as of 5 p.m., the agency would be closing.

“We are honored to have served the agency all these years and are proud of the accomplishments … most importantly, assisting the Department of Corrections over the past 25 years in providing appropriate health care consistent with the eighth amendment requirements of the United States constitution,” she wrote.