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Faking Suicide To Get Healthcare And Other BOP Tales of Horror – Update for May 23, 2024

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

FCI SHERIDAN IS POSTER CHILD FOR BOP DYSFUNCTION

IG230518The Department of Justice Inspector General released a report yesterday that found “serious operational deficiencies,” including “alarming staffing shortages” at the Bureau of Prisons facility in Sheridan, Oregon.

One might say that BOP dysfunction is trending.

FCI Sheridan, a medium-security men’s prison with an adjacent detention center and prison camp, was Inspector General Michael Horowitz’s third unannounced prison inspection since the IG began the program at FCI Waseca (a women’s facility) last May. That report was followed by last November’s findings on a surprise inspection at FCI Tallahassee, another women’s facility. Now, after inspecting two female facilities, the IG has focused on the other 92% of inmates, the men.

IG Horowitz is taking Jan and Dean to heart: Two girls for every boy.

The dominant theme of the Sheridan report is staffing shortages and the effect the problem has on healthcare. providing a glimpse into the depth of inmates’ frustrated enterprise:

For example, we found that, just prior to our inspection, an inmate feigned a suicide attempt in order to receive medical attention for an untreated ingrown hair that had become infected. When finally examined after the feigned suicide attempt, he required hospitalization for 5 days to treat the infection.

gottaso240523No doubt the prisoner was punished for his desperate caper, but only he got out of the hospital. The BOP is unlikely to have acknowledged that it shared any responsibility for turning the simple ingrown hair removal into a $50,000+ medical expense. The inmate was right: you gotta do what you gotta do, and that includes doing what it takes to get urgent healthcare from an overtaxed and uncaring bureaucracy.

The Sheridan findings are plenty harrowing, even without the illustration of the faked suicide attempt. The IG summarized them as:

Healthcare Worker Shortages: Because of short staffing in the Health Services Department, a backlog existed of 725 lab orders for blood draws or urine collection and 274 pending x-ray orders at the time of the inspection. “These backlogs cause medical conditions to go undiagnosed and leave providers unable to appropriately treat their patients,” the report said.

High Correctional Officer Vacancy Rate: A shortage of correctional officers meant that “inmates must routinely be confined to their cells during daytime hours and are therefore often unable to participate in programs and recreational activities.” What’s more, the shortage meant that “FCI Sheridan did not always have available Correctional Officers to escort inmates to external medical providers.”

Psychology Services and Education Department Staffing Shortages: “[S]erious shortages among drug treatment program employees prevented the institution from offering its Residential Drug Treatment Program (RDAP) to inmates… We also found long waitlists, some exceeding over 500 names, for other trauma-related mental health, anger management, and work skills classes.”

Sexual Misconduct Reporting: FCI Sheridan did not centrally track the number of all allegations of inmate-on-inmate sexual misconduct reported to employees. The failure “undermines the ability of… the BOP to collect data consistent with Prison Rape Elimination Act (PREA) standards that would allow them to assess and improve the effectiveness of sexual misconduct prevention efforts.”

understaffed220929

NPR reported that the staffing shortages “are among the biggest obstacles facing the federal prison system, according to this report, and contribute to other challenges at Sheridan and the more than 120 facilities like it.” Horowitz told NPR that “[i]t’s a problem that is at least 20 years in the making. It’s not going to get fixed overnight. But what these inspections show us how serious the problem has now become.” Horowitz said. “It is deeply concerning when you go to a facility like Sheridan and you hear from the staff, correctional officers, health care workers, educators, that they can’t do the jobs that they’re there to do and they want to do.”

After this third IG inspection, a trend is developing:

• Both the Tallahassee and the Sheridan inspections found “serious operational deficiencies” and “alarming” problems. At FCI Tallahassee, the alarming conditions were with the facility’s execrable food service. At Sheridan, staff shortages were “alarming.” The IG is able to be frugal, reusing the same descriptors for multiple prisons.

• All three inspections included the same disclaimer: “We did not make recommendations in this report because in our prior work we have recommended that the BOP address many of these issues at an enterprise level.” In other words, the IG was reporting on endemic BOP problems that exist throughout the system. The Sheridan report parrots the prior reports, conceding that “[m[ost of the significant issues we found at FCI Sheridan were consistent with findings the OIG has made in other recent BOP oversight work, which we have reported on publicly.”

Nothing new here, either folks.

• We’re starting to suss out the inspection tempo. The Waseca report was last May, the Tallahassee report was in November 2023, and Sheridan was this week. It looks like the IG is inspecting about two facilities a year. Certainly, there are resource considerations: it takes people to kick open the prison doors. Horowitz told a National Press Club audience last March that “[m]y 500 personnel [are] comprised mostly of auditors and law enforcement agents. We also have evaluators and inspectors. One of the things we’re doing now, by the way, is unannounced inspections of federal prisons, and those are much smaller groups compared to the auditors and the agents.”

• All three inspections found serious staffing problems, which is hardly news. The Waseca and Sheridan inspections found long delays in providing First Step Act and drug abuse programming to inmates, which the Sheridan report said resulted in inmates having “limited opportunities to prepare for successful reentry into our communities. “ All three reports found that shortages of Healthcare staff had “negatively affected healthcare treatment” (as the Tallahassee report put it). The Waseca findings were that “staff shortages in both FCI Waseca’s health services and psychology services departments… have caused delays in physical and mental health care treatment.”

• The IG reports all seem to come with some sexy news hook. Waseca’s was inmates living in basements and under leaky pipes. Tallahassee’s was moldy food and rat droppings in the chow hall. Sheridan’s was the feigned suicide attempt to get healthcare.

suicide240523“What we’ve seen over and over again, in our unannounced inspections of the Bureau of Prisons is the challenges they face in meeting their mission of making prisons safe and secure, and preparing inmates for reentry back into society,” Horowitz told NPR in an interview reported yesterday. “And this is another case where we’ve seen severe challenges that they face in fulfilling those missions.”

DOJ Inspector General, Inspection of the Federal Bureau of Prisons’ Federal Correctional Institution Sheridan (May 22, 2024)

NPR, Lack of staffing led to ‘deeply concerning’ conditions at federal prison in Oregon (May 22, 2024)

National Press Foundation, ‘The Truth Still Matters’: Justice Department Inspector General Highlights Non-Partisan Work (March 15, 2024)

– Thomas L. Root

Court Doubts BOP Medical Care Standards – Update for November 2, 2023

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

‘WE ARE STILL HUMAN’: CARSWELL MEDICAL CARE ON TRIAL IN SOUTH FLORIDA HEARING

healthbareminimum220603A woman whose 18-month federal sentence last April came with a promise by a BOP medical official that he’d personally see that she would receive the care she needed to treat her life-threatening seizure condition was back in court after only eight weeks in FMC Carswell, due to her attorney’s concern that “the BOP has proven unable to manage or prevent these life-threatening episodes.”

Suzanne Kaye suffers from severe, stress-induced seizures. She went into cardiac arrest on the floor of the courtroom last year when she was convicted of threatening to shoot FBI agents in the “f****** ass. When she was sentenced, her lawyer warned that sending her to prison could kill her.

At sentencing, the Court found that there was “no doubt” that Suzanne “does suffer from a serious health condition, in fact perhaps a number of health conditions,” that she was “medically frail,” and that “she will require much medical care.” But despite her undisputed seizure disorder and other medical ailments, the Court relied on testimony from the FMC Carswell Medical Director that the BOP could “provide Ms. Kaye with whatever medical care she needs.”

Suzanne self-surrendered in mid-July. Only two months later, her attorney told the court that Suzanne “has required emergency outside hospitalization on at least two separate occasions. Specifically, counsel has been advised that Mrs. Kaye has suffered ongoing, repeated seizures—including two major episodes—with the latest episode involving cardiac arrest. (It has also resulted in blood clots that are now not being monitored)…” The BOP’s “repeated failure is contrary to the picture painted by the government at sentencing. Counsel has also been advised fellow inmates have been forced to attempt to [provide] life-saving care during these seizures because prison officials failed to do so.”

BOPMedical221208BOP medical official Mark Holbrook told the judge in April that some inmates have medical needs beyond what the Bureau of Prisons can treat. Suzanne, he said, was not one of them. But five months later, her heart and lungs briefly stopped working on the floor of a friend’s cell. Inmates screamed at the guards to call for help. “Granny’s eyes were wide open, but you could see that the light was no longer there,” wrote Katherine Moore, one of two incarcerated women who performed CPR on Kaye until medics arrived. “She was gone.”

“That was my mistake,” Dr. Holbrook admitted to the judge last month.

The Palm Beach Post reported, “Letters from half a dozen inmates and the testimony of Carswell’s own medical director depict a standard of care unlike the one Holbrook promised. One where Kaye must depend on her fellow inmates to keep her heart beating, and doubts over the legitimacy of her seizures dampen what care she does receive.”

When vouching for Carswell, the doctor said Suzanne would have access to a neurologist to treat her seizures and a psychologist to treat the anxiety that triggers them. He also promised a combination of anti-seizure medications that would take the place of her medical marijuana. “He made several promises and several assurances. It appears none of which occurred,” Suzanne’s attorney told the judge last month. “I’m not saying he lied — maybe he meant to and he forgot — but it is inexcusable in my opinion.”

Dr. Holbrook told the judge he left a voicemail with someone he believed was Carswell’s clinical director and never heard back. Maitee Serrano-Mercado, Carswell’s clinical director, testified that she was never contacted by Holbrook, and prison staff only belatedly learned that Kaye had a history of seizures.

Still, Dr. Holbrook said he was thankful Suzanne was at Carswell because it is “the best location” for her to be provided care. “Second best” undoubtedly would be an abattoir.

DrNoBOPHealth230925The Post noted that Carswell, once dubbed by the Fort Worth Weekly as a “hospital of horrors,” is “the only federal medical facility for incarcerated women in the country. It lost its accreditation during the pandemic and has not gotten it back. Indeed, the BOP seems to have no interest in doing so.

Carswell clinical director Serrano-Mercado argued at the hearing that Suzanne’s seizures might not be real. Serrano-Mercado admitted that the staff treating Suzanne are the same who treated a woman named Gwen Rider, a Carswell inmate who committed suicide in August. Like Suzanne, Rider was sent to Carswell because she needed medical treatment for epileptic seizures. Staff accused her of faking her seizures, too.

Suzanne was hospitalized again two weeks ago. Her mother, Brenda Kaye, told The Palm Beach Post that BOP medical personnel accidentally fractured her sternum while checking to see if she exhibited a pain response.

In an email to The Post, Suzanne called the treatment of herself and other women at the prison “nothing short of torture.” “People come in here walking and leave in wheelchairs. People die here,” she wrote. “I don’t want to be one of them.”

medical told you I was sick221017After publishing this report in my newsletter last weekend, I received an email from a prisoner at Carswell. She had been present when Suzanne and two other prisoners suffered seizures:

I had run to get an officer for the first one (which was Suzanne) and she wouldn’t call it on the radio, a medical emergency so I had to run to inside [the Recreation area] and get the officers there. They came running, Once they made it over there another girl went down in a bad grand mal seizure, then another one went down, also a really bad one that seemed like it was never-ending. The rec officers did their best, then other officers showed up but medical never showed up. The officers on the scene had to put the ladies on the back of their easy-go car and drive them up to the hospital area one at a time.

The time they had broken Suzanne’s collar bone I believe [they were] trying to get her heart to beat again. Just thought I would share an experience I had firsthand to put more information out there! Medical here does not care about us. They are desensitized and should all for the most part be replaced. We are still human and do not deserve to be treated like this. 

Palm Beach Post, ‘Inexcusable’: Attorney blasts federal prison officials over Boca woman’s medical care (October 27, 2023)

Motion for Hearing (ECF 200), United States v. Kaye, Case No 9:21-cr-80039 (SD Fla., September 12, 2023)

– Thomas L. Root

Some ‘Shorts’ – Update for June 13, 2023

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, a “short rocket” of odds and ends collected over the last week or so…

THE SHORT ROCKET

rocket190620Editorial Calls For Change In BOP: In an editorial bemoaning recent reports on BOP facilities and management failings, the Washington Post on Saturday demanded passage of S.3545, The Prison Accountability Act of 2022.

The Federal Bureau of Prisons generally labors in obscurity, except when a high-profile inmate arrives, as Theranos founder Elizabeth Holmes did the other day, or when a notorious one passes away, most recently FBI-agent-turned-Russian-spy Robert Hanssen.  And yet its mission — housing roughly 159,000 people convicted of federal crimes humanely and securely, and then fostering their reentry to society — is crucial to the rule of law.  The BOP operates 122 facilities at a cost of about $8.4 billion in fiscal 2023, the second-biggest budget item, after the Federal Bureau of Investigation, in the Justice Department.  With more than 34,000 personnel, the BOP is the department’s largest employer.

mismanagement210419The editorial concluded that “[i]t’s time for more attention to be paid to the BOP. A steady flow of reports has documented an agency beset by chronic problems — unsanitary kitchens, sexual assaults, an astonishing recidivism rate of around 43 percent — in urgent need of reform.” Plugging the FPOA, the Post argued, “The BOP needs stable leadership, without which consistent policy cannot be sustained, let alone reformed. Its director should be nominated by the president for a single 10-year term, subject to Senate confirmation, like the director of the FBI. A measure proposed in both houses last year would make this change, yet it languishes… The need for structural change at the BOP is clear. So are the costs of inaction.”

Washington Post, How to end the dysfunction at the Federal Bureau of Prisons (June 10, 2023)

Another Presidential Hopeful Slams First Step Act: Mike Pence – who announced his candidacy for the Republican presidential nomination last Wednesday – told an Iowa town hall event that there’s a need to “rethink” First Step, signed by then-President Trump while Pence was serving as vice president.

lock200601“I think we need to take a step back and rethink the First Step Act,” Pence said at an Iowa town hall event. “I mean we’ve got a crime wave in our major cities, and I think now more than ever we ought to be thinking about how we make penalties tougher on people who are victimizing families in this country.”

Pence’s comments reflect how sharply the Republican position on crime and criminal justice reform has shifted in the roughly four years since Trump signed First Step into law.

The Spectator noted the recent Republican phenomenon, which began with Ron DeSantis – who himself voted for a House version of First Step back in spring 2018 – going after Donald Trump for signing the bill:

The GOP’s abandonment of criminal justice reform is likely a welcome change for tough-on-crime mainstays like Senators Tom Cotton and John Kennedy, who voted against the First Step Act, while the libertarian wing of the party will be vexed. The real story will be in how these internal fights are received by primary voters, as 80 percent of Republicans said crime is a real threat in communities in a March NPR poll. Which primary candidates can run the fastest from the perception that they might be gracious to criminals?

The Hill, Pence: Time to ‘rethink’ criminal justice reform bill signed by Trump (June 7, 2023)

The Spectator, The GOP is sprinting away from criminal justice reform (June 12, 2023)

BOP Employees Charged With Lying About Dying Inmate: A BOP correctional lieutenant and a nurse are accused of ignoring the serious medical needs of a man who died under their supervision at FCI Petersburg, federal prosecutors said.

medical told you I was sick221017BOP Lt. Shronda Covington was told the 47-year-old inmate, identified in the indictment as W.W., was eating out of a trash can, urinating on himself and falling down the day before his death in January 2021 at FCI Petersburg in Hopewell, according to court documents. However, she told federal investigators that W.W. was walking around his cell, doing pushups and listening to music on January 9, 2021, the indictment alleges.

Tonya Farley, a BOP RN, has been charged with filing a false report.

The employees were charged on June 6 with violating the man’s civil rights “by showing deliberate indifference to his serious medical needs, resulting in his death,” the United States Attorney’s Office for the Eastern District of Virginia said in a news release. The man died due to heart issues on Jan. 10, 2021, according to records obtained by The Associated Press.

Rock Hill Herald, Man accused of faking illness dies in prison after medical needs are ignored, feds say (June 8, 2023)

US Attorney’s Office, Two Federal Bureau of Prisons Employees Charged with Violating the Civil Rights of an Inmate Resulting in His Death (June 7, 2023)

– Thomas L. Root

BOP: Not a ‘Common Jailor’ But A Pretty Indifferent One – Update for June 3, 2022

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WHERE HAVE WE HEARD THIS ONE BEFORE?

Complaints about the BOP healthcare system are as common as kvetching about the food it serves. There may be a reason for that.

chickie220603Vincent “Chickie” DeMartino, serving the final 30 months of a 300-month sentence for an attempted mob hit, sought compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) because of his deteriorating health – in particular, complications with his right eye – and because of the BOP’s “cavalier attitude” in addressing his worsening medical problems.

Vince argued that his poor health and the BOP’s refusal to do anything about it constituted the “extraordinary and compelling” reasons required by the statute for a reduction of his sentence to time served.

Last week, the United States District Court for the Eastern District of New York agreed. As the Daily News colorfully put it

A Brooklyn judge sprang a violent mobster from prison because he said the federal Bureau of Prisons did a lousy job taking care of the wiseguy’s medical problems.

Federal Court Judge Raymond Dearie issued a scathing ruling Thursday, saying the feds weren’t competently treating made man Vincent “Chickie” DeMartino’s maladies. The goodfella had more than two years left of his 25-year sentence for an attempted hit on a fellow Colombo family member.

The Court found that Vince suffered from high blood pressure which puts him at severe risk of stroke and numerous ophthalmologic issues. Vince said he was essentially blind in his right eye and had 20/400 vision overall, which made him legally blind.

healthcare220224What made his condition “all the more extraordinary and compelling,” the Court held, was “the BOP’s lack of responsiveness and candor with respect to his medical conditions.” Despite the BOP being aware of the condition, the District Court said, “the record reflects a consistent pattern on the part of the BOP of downplaying Mr. DeMartino’s conditions and delaying treatment. Despite the severity of his ocular conditions, it has been a herculean task for Mr. DeMartino to see an ophthalmologist.”

A month ago, the Court told the parties that Vince required “immediate appropriate care.” The government promised the Court that Vince would see an outside specialist right away. That of course did not happen. Vince’s prior visits to the eye doc had been canceled, according to the BOP, because the facility Health Administrator asserted that the “retina specialist does not need to see the defendant again unless he is having further complications.”

This statement, charitably put, lacked the kind of candor that the government would have demanded from Vince, were the tables turned.. The Court found the statement to be “misleading, as the Health Administrator’s note omitted reference to the ophthalmologist’s recommendation that Mr. DeMartino undergo pars plana vitrectomy surgery.”

When the Court ordered the Government and BOP to provide clarification about Vince’s need for surgery from the same ophthalmologist who had recommended surgery, the Government pulled the old “bait-and-switch.” It provided a memorandum from an optometrist – not an ophthalmologist and definitely not the one who had recommended the surgery – to support the appalling lack of care. The BOP optometrist said Vince’s surgery was unnecessary, but then qualified his opinion by admitting that he could not “directly determine the need, or lack thereof, for surgery” and would need to “defer questioning related to a need for surgery and/or the urgency of surgery to an ophthalmologic surgeon.”

That’s sort of like saying “it’s definitely not going to rain tomorrow, but I have not seen a weather forecast and even if I had, I’m not a meteorologist and I really have no idea whether what I just said is right or not.”

healthbareminimum220603“All told,” the court ruled, “this record leaves the Court with the impression that the BOP has undertaken the bare minimum of care for Mr. DeMartino, limiting its efforts to ensuring that he does not require emergency surgery, but minimizing the fact that his vision is failing and refusing to implement any meaningful plan to monitor or treat the conditions in the longer term… The BOP is not a common jailor. Theirs is a far more challenging and vital responsibility. Human beings are entrusted to their care for decades on end. There is no excuse for inaction or dissembling and, in this Court’s view, no alternative to immediate release.”

Order (ECF 276), United States v. DeMartino, Case No 1:03cr265 (EDNY, May 26, 2022)

– Thomas L. Root

Courts Questioning BOP Medical Care As COVID Surge Loom – LISA Newsletter for May 9, 2022

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

COVID SURGE FORECAST AS BOP’S RESPONSE QUESTIONED

The Biden administration is warning the nation could see 100 million COVID infections and a potentially significant wave of deaths this fall and winter, driven by new omicron subvariants that have shown a troubling ability to overcome vaccines and natural immunity.

The projection is part of an Administration push to persuade lawmakers to appropriate billions more to purchase a new tranche of vaccines, tests and therapeutics, released last Friday as the nation is poised to reach a milestone of 1 million COVID deaths sometime this week.

omicron211230Omicron variants BA.4 and BA.5 are causing a spike in cases in South Africa, where it’s winter, continuing a pattern of semi-annual COVID-19 surges there. The genetic makeup of these variants — which allows them to evade immunity from previous infection — and the timing of their emergence in the Southern Hemisphere point to a surge in the United States in the coming months, says UCLA Health clinical microbiologist Dr. Shangxin Yang.

The US also should expect a summer coronavirus surge at least across the South. Last week, former White House COVID response task force coordinator Deborah Birx said, “We should be preparing right now for a potential surge in the summer across the southern United States because we saw it in 2020 and we saw it in 2021.” With more infections come more opportunities for the virus to mutate, according to WHO’s Maria Van Kerkhove.

As it is, an anticipated summer surge of COVID in the south may have begun. The seven-day national average of new infections more than doubled in five weeks from 29,000 on March 30 to nearly 71,000 last Friday. White House officials have said they’re concerned that much of the nation’s supply of antivirals and tests will be exhausted as a result of the anticipated increase in cases in the South. Without those tools, they say the country would be unprepared for a fall and winter surge, and deaths and hospitalizations could dramatically increase.

healthcare220224Predictions of future COVID waves come as the Bureau of Prisons’ COVID medical care is subjected to fresh criticism. Healthcare news outlet Stat reported last week that since November 2020, the BOP “used just a fraction of the antiviral drugs they were allocated to keep incarcerated people from getting seriously ill or dying of Covid-19.” Stat said internal BOP records show the Bureau used less than 20% of the stock “of the most effective antiviral drugs for treating COVID.”

In the case of Pfizer’s effective antiviral pill, Paxlovid, BOP prescription records over the two years ago “include just three prescriptions for Paxlovid, despite the fact that the drug is easy to administer and has been proven to significantly reduce hospitalization and death from Covid-19.”

Two compassionate release grants last week under 18 USC § 3582(c)(1)(A)(i) on opposite sides of the nation suggest that district courts may be tiring of the BOP’s blandishments that its medical care is adequate. In Oregon, a granted early release to James Wood, a 53-year-old man who had served 68% of his sentence for two bank robberies. The court held Jim had served significant periods during the pandemic without access to his psychiatric medication or received medication that made his symptoms worse.

The judge called Jim’s time at FCI Sheridan during the pandemic “an excruciating experience.” In addition to frequent lockdowns, which applied to all inmates, Jim suffered an injury that prison medical services failed to treat. The injury festered, but Jim was finally able to knock back the infection by pouring hot water on the wound.

The government argued that medical records did not substantiate that Jim had been denied treatment. He replied that that was unsurprising inasmuch as the medical staff refused to do anything, a refusal that would not have generated a record.

toe220509Meanwhile, a Connecticut federal court released Tim Charlemagne, who was doing time for a drug offense, after finding “the record… demonstrates that Mr. Charlemagne has received inadequate care for his serious medical conditions since the day he began his period of incarceration.”

Those conditions included morbid obesity, high blood pressure, and diabetes. Tim didn’t receive the foot care in prison that his podiatrist recommended when he was sentenced, and all the toes on his right foot had been amputated as a result, according to the Federal Public Defender. The government argued that Tim was being transferred to a medical center from FCI Schuykill (where he presumably would get better care), but it admitted no date set was set for the transfer.

Tim had served 14 months of his 41-month sentence. He will do another nine months on home confinement before beginning his supervised-release term.

Both of these decisions are noteworthy because they combine a general acknowledgment of miserable prison conditions during the pandemic with specific findings that BOP healthcare had failed the inmates seeking compassionate release. The cases suggest that successful compassionate release motions as COVID surges again will focus on an inmate’s individual allegations of inadequate medical care.

Washington Post, Coronavirus wave this fall could infect 100 million, administration warns (May 6, 2022)

US News, New Omicron Subvariant Spreading in US as Coronavirus Cases Increase (May 2, 2022)

UCLA Health, New omicron variants and case surge in South Africa portend summer rise in COVID-19 cases here (May 6, 2022)

Stat, Prisons didn’t prescribe much Paxlovid or other Covid-19 treatments, even when they got the drugs (May 5, 2022)

Portland Oregonian, Judge grants compassionate release to convicted bank robber, calls his time at Oregon’s federal prison ‘excruciating experience’ (May 6, 2022)

United States v. Wood, Case No 3:18-cr-00599 (D.Ore, compassionate release granted May 6, 2022)

Windsor Journal-Inquirer, Judge orders release of Windsor man in Enfield OD death case (May 6, 2022)

United States v. Charlemagne, Case No 3:18-cr-00181, 2022 U.S. Dist. LEXIS 82270 (D.Conn, May 6, 2022)

– Thomas L. Root

BOP Healthcare: No Experience Required – Update for July 7, 2021

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BOP HEALTHCARE TAKES IT ON THE CHIN

The Bureau of Prisons’ healthcare system took some hits last week.

BOPkickme210707First, from the “Crime Pays – If The Victim is the BOP” department: NaphCare – a private company that boasts it offers “proactive, preventative medical and mental health care providing community-standard of care in jails and prisons” – demonstrated how to defraud the BOP without consequence. NaphCare overbilled the BOP by “submit[ing] inflated claims for evaluation and management services.” And, after stealing at least $690,000 from the BOP, not only are there no criminal prosecutions, but NaphCare’s contract continues without interruption. All it has to do is pay it back.

Try that one with the judge on your next fraud indictment.

The Dept. of Justice announced last week that it had settled a False Claims Act proceeding against NaphCare by agreeing that the company could pay back $694,000 without admitting that it had done anything wrong. The “anything wrong” was a scheme whereby its employee physicians occasionally did not indicate the type of service performed on an inmate when they completed onsite visit sheets. When that happened, a NaphCare employee would fill in a code for a more expensive medical service and bill the BOP accordingly.

The scam went something like this: the NaphCare doc treats Ira Inmate for an ingrown toenail but fails to code it on his report turned into the home office. A NaphCare staffer sees the blank, and inserts the code for “heart transplant.” NaphCare charges a bit more for heart transplants.

The government caught NaphCare pulling the grift at USP Terre Haute and USP Victorville. The settlement agreement suggests NaphCare did it elsewhere, too, and has to report other improperly-billed costs within 90 days. In other words, the $694,000 at two facilities may just be the tip of the iceberg.

As an old law partner of mine liked to say, “no thief steals only once.” Or twice, in this case.

quackdoc210707So how do you run a billing scam on the nation’s chief law enforcer? Well, when the BOP’s healthcare system run by a former correctional officer without healthcare credentials, it is apparently not that hard. The Marshall Project reported Thursday that the senior official responsible for overseeing health care, safety, and food service in all of the BOP’s 122 facilities is Michael Smith. Mr. Smith (don’t call him “Dr.”) is a community college dropout who started his career as a CO in 1997. Smith directs three national program areas: medical, environmental and safety compliance/occupational health, and food service.

“I would seriously question his understanding of science, but he was a nice guy,” said Bill Axford, union president at FMC Rochester, where Smith previously worked as an associate warden, told The Marshall Project. Axford said when he once raised concerns with Smith that radon, an odorless radioactive gas that can cause lung cancer, could pose a danger to parts of the prison, Smith initially dismissed the potential threat, telling Axford that “radon’s not real.” Axford said that on another occasion, Smith told him that sunscreen, not the sun, caused skin cancer.

Junk Science210707Union leaders, prison health care workers, and advocates for prisoners’ rights said it is troubling that the people leading the BOP Health Services Division during the COVID-19 crisis lacked medical licenses. Nearly 50,000 federal prisoners tested positive for COVID-19 as of last week, and at least 258 have died. The BOP came under fire last year from politicians and union leaders for pressuring guards to come to work sick, failing to follow its own pandemic plan, and buying knock-off N-95 masks. “They spent $3 million buying UV portals,” one official added. “They said these killed the coronavirus — but they weren’t FDA-approved.”

“This is why our agency is broken,” said Joe Rojas, a national union leader who works at FCC Coleman. “You have people who are unqualified and you have a medical pandemic, but the leadership has zero medical background.”

“A great many of the people who ever had COVID, they were never tested,” complained Dr. Homer Venters, a former chief medical officer of the New York City jail system who inspected health conditions in prisons around the country over the past year, some as a court-appointed expert. “In most prisons, it ran through these places like wildfire.”

One man housed at a low-security federal prison compared the BOP’s public data to what he was seeing inside. At least half of his unit fell ill, he said, but the Bureau’s data didn’t reflect that.

“For the first year of the COVID, they never tested anybody in my institution unless they had a fever,” an unidentified BOP prisoner told the Associated Press. “The easiest way to not have a positive at your institution is to not test anybody.”

Sitdown210707In the pandemic’s early days, the AP said last week, testing within the BOP was limited, and staff members at some prisons were told there was no need to test inmates. The DOJ Inspector General found that, at some facilities, inmates who tested positive were left in their housing units for days without being isolated.

The concern is not just academic. The highly transmissible COVID-19 Delta variant is now in every state, and is set to cause another COVID-19 surge. The Atlantic last week said, “Vaccinated people are safer than ever despite the variants. But unvaccinated people are in more danger than ever because of the variants. Even though they’ll gain some protection from the immunity of others, they also tend to cluster socially and geographically, seeding outbreaks even within highly vaccinated communities.”

COVIDvaccine201221As of last Friday, 53.5% of inmates and 52.0% of staff were vaccinated. One BOP union official, who has not taken the vaccine yet, said, “I don’t trust the agency. I’m not putting my health and safety in the hands of the BOP.” As for the unvaccinated inmates, Dr. Venters told the district court hearing litigation over FCC Lompoc that many inmates who had refused the vaccine “reported that despite having questions about the vaccine and their own health issues, these questions were not addressed during the vaccine offer or afterward… The CDC has entire toolkits and guidance documents designed to increase vaccine update, but the basic foundation of these efforts is engaging with patients… Many of these high-risk patients were initially offered the vaccine 3 or 4 months ago, and the insistence by BOP leadership that their very valid and predictable questions and concerns go unaddressed during this time significantly increases the risk of preventable death from COVID-19.”

Dept. of Justice, Prison Health Care Provider Naphcare Agrees to Settle False Claims Act Allegations (June 25, 2021)

Settlement Agreement between DOJ and NaphCare (June 25, 2021)

The Marshall Project & NBC News, Prisons Have a Health Care Issue — And It Starts at the Top, Critics Say (July 1, 2021)

Chicago Sun-Times, Despite COVID’s spread in prisons, there’s little to suggest they’ll do better next time (June 30, 2021)

The Atlantic, The 3 Simple Rules That Underscore the Danger of Delta (July 1, 2021)

Second Report of Dr. Homer Venters, Docket 239, Torres v. Milusnic, Case No 20-cv-4450 (C.D.Cal.), filed May 12, 2021

– Thomas L. Root