Dying in Cell 40: Vermont’s Flawed Contract and Prison Health Service’s Drive for Profit Lead to Prisoner’s Death
“It is a pretty blatant and obvious and extreme case of gross negligence,” said Seth Lipschutz, supervising attorney at the Vermont Defender General’s office. “We figured out in a day that they killed her.”
In January 2010, when Tennessee-based Prison Health Services (PHS) left Vermont under a cloud, the state hired the fifth private company in 14 years to run its prison health care system. The contract was expanded to absorb mental health functions.
Vermont’s serial contracts with for-profit corporations follow a nationwide pattern: Oversight is flawed, prisoner care is stingy, contractors are indifferent to or insulated from lawsuits, and states switch providers when trouble hits. Meanwhile, a fundamental conflict remains: A for-profit system thrives by cutting costs and services, while sound prisoner and public health care principles demand that careful medicine comes first.
Ashley Ellis’ tragic death throws the nature of this conflict into sharp relief.
Just the Facts
Ellis was 5 foot 6 and weighed 87 pounds when her grandmother drove her past dairy farms and August corn fields to the rings of chain link and razor wire that wrap Northwest State Correctional Facility in Swanton.
The 23-year-old was “gaunt and haggard,” according to a news report, when she was sentenced last August. Ellis was ordered to report to prison two days later, although her public defender had begged for no jail time for the July 2007 accident: Traffic accidents aren’t crimes, argued Mary Kay Lanthier, insisting that her client was just too sick for prison.
Rutland District Court Judge Thomas Zonay, ignoring or ignorant of the prison’s bare-bones medical staffing on weekends, ordered Ellis to report to the 160-bed red brick prison just south of the Canadian border on August 14, a Friday before a three-day weekend. Judge Zonay declined to be interviewed for this story.
From the moment Ellis entered the bleak intake room with its two barred cells, her life was in the hands of a company with a cross-country rap sheet that is spattered with deaths, lawsuits, millions of dollars in fines and settlements and numerous investigations.
A 2005 three-part New York Times investigation found PHS’ care “flawed and sometimes lethal.” The company, the paper noted, has “hopscotched from place to place, largely unscathed by accusations that in cutting costs, it has cut corners.”
Ellis’ doctor and her lawyer had alerted the prison to the young woman’s fragile health. Police reports and state investigators confirm that days in advance of her incarceration, Ellis’ doctor, Michael Garcia, faxed her health records to Dr. Delores Burroughs-Biron, head of Department of Corrections (DOC) Health Services. The extensive document detailed her serious anorexia/bulimia nervosa and her need for frequent meals, and most importantly, the regular potassium supplements meant to prevent her heart from shutting down.
No one competent to assess her health was present at Ellis’ medical intake. There was no doctor at the facility, and only one RN (for one shift) during the almost two days Ellis survived in jail, according to DOC records. Nursing at Northwest on weekends – 5 p.m. Friday to 7 a.m. Monday – by contract is light and assigned to licensed practical nurses. LPNs, who typically study for one year, are barred by state nursing regulations from assessing patients, and may not have had the training to understand how critically ill Ellis was.
Ellis, who never got the prescribed potassium, was found dying in her cell at 6:30 a.m. Sunday, according to the police report. An autopsy determined the cause of death as hypokalemic (potassium deficiency) induced cardiac arrhythmia caused by a denial of access to medication.
PHS’ public relations firm issued a statement that Ellis “received care that met applicable standards ... and PHS did not deny her access to medications.” The corporation has declined to say more.
At the same time, Franklin County State’s Attorney Jim Hughes chose not to prosecute, saying his “decision was to seek no charges against any individuals in the case.” Sanda Gipe, Ellis’ grandmother, says she is “not mad that they didn’t charge one person; there were a lot of people who didn’t do their job.”
For the state’s part, no agency has decided to go after PHS, either. Although a corporation can be charged with a crime, Vermont’s Defender General Matthew Valerio told the Rutland Herald, “I think that it would be difficult” for the state’s attorney’s office to have the resources to prosecute a corporation.
Ellis’ family, meanwhile, is looking into a civil suit, and has hired the Rutland law firm of Kenlan, Schwiebert, Facey & Goss to review the death.
PHS is well practiced in paying off lawsuits as a cost of doing business. “It’s in their interest to provide inadequate care, and take lumps when sued,” said the defender general, attorney Lipschutz. And when things get really dicey, PHS simply leaves, “thus preserving its marketable claim that it has never been let go for cause,” the New York Times reported almost five years ago.
Conveniently for PHS and Vermont, the current contract expired on Jan. 31, 2010, and the four-year relationship ended with a volley of I-quit /Don’t-bother-to-reapply exchanges.
When Ellis entered prison that Friday afternoon of August 14, Wayne Hojaboom, an LPN, conducted the medical intake. He later told police that he had been given “no prior information” about Ellis’ condition.
Burroughs-Biron said that “there should be an intake screening and assessment as soon [as] possible, immediately.” Asked why an LPN – not legally qualified to assess patients – was given this role, she rephrased: “There should be a screening that is not assessment.”
On Wednesday, two days before Ellis arrived at the prison, Burroughs-Biron faxed Ellis’ medical records, including the drug orders, to Northwest’s clinical coordinator, Renee Trombley, an LPN. The police report details what ensued next, with disastrous consequences: a perfect storm of poor decisions and inadequate staffing coupled with a cumbersome bureaucracy and a breakdown in communications.
Trombley said that she received the meds order. But, she told police investigators, she got too busy because of a staffing shortage. After a nurse on the Friday shift “did not show up,” Trombley asked Dr. Burroughs-Biron to excuse her from a meeting in Waterbury so she would not leave just one nurse at the facility, and so she would have time to fill in for the missing nurse. Trombley told police that Burroughs-Biron denied her request, and that was why “she didn’t have a chance on Friday to follow up on Ellis’ medication.” Neither Burroughs-Biron nor Trombley would comment on the police statement.
On Saturday, when LPN Connie Hall showed up at 6 a.m. for her 12-hour shift and reviewed the day’s medical charts, she told police that she called Dr. John Leppman, the only PHS physician in the state on call that weekend. He faxed an order to Hall for Ellis to receive folic acid, potassium and Tums.
Since the prison had no potassium in stock, Hall left a cell phone message for nurse Karen Hough, who was scheduled for the 6 p.m. shift, asking her to stop at the local drug store on her way in. But Hough, according to the police report, did not check her messages, and arrived at Northwest on Saturday evening just before the Rite Aid closed for the night. Hough, police say, quit her job after Ellis died.
“It is reasonable to create a picture that people receiving the order [for meds] didn’t understand the full context,” said PHS’ on-call physician Leppman. “Communication of a medical problem, and the reason for the order, didn’t rise to the level of urgency that it appeared it should have.”
“I never got [Ellis’] medical reports, never asked for the reports,” Leppman said. “I was not on the distribution list, and didn’t have access to the information.”
By Saturday, Ellis was desperately trying to communicate the urgency of her need. She begged so often and fervently for potassium that the corrections officers nicknamed her “Potassium Girl.”
She had been hospitalized previously for eating disorders and knew the danger signs. In a sick call request form she wrote but apparently never filed, Ellis pleaded, according to the police report, that “she could have a heart attack or die if her potassium gets too low.”
One corrections officer had taken pity on the emaciated woman and violated rules to make her a peanut butter and jelly sandwich, according to Darla Lawton, an investigator with the Defender General’s office. Another CO said angrily that a person as fragile as Ellis should have been hospitalized – not incarcerated. He described Ellis as “a skeleton,” adding, “I have never seen anyone in that condition.”
By 9 p.m., an hour before lockdown that Saturday, Ellis complained that she felt unwell and went to bed in her one-person cell. Her grandmother, Sanda Gipe, remarked in an interview, “Ashley was someone who needed help so much, and no one helped her.”
Dying in Cell 40
By Sunday morning, Ellis’ potassium levels must have been critically low. According to Lawton, the police and other sources, when a corrections officer came to collect her breakfast tray, the prisoner, who had been alert a half-hour before, lay crumpled on her bunk. Her eyes were fixed and staring, her mouth contained unswallowed food. A “Medical 33” call echoed through the prison, and within minutes, a CO applied the Heimlich maneuver and nurse Connie Hall did a mouth sweep. But the problem, the autopsy determined, was not the food Ellis had eaten, but medication she was denied.
“At first, there was no [protective] mask for mouth-to-mouth resuscitation,” said Lawton, “so Connie went ahead without it.” Hall and the corrections officer alternated for 10 to 15 minutes with chest compressions and breathing, trying desperately to establish a pulse.
Up and down Delta Block, locked-in prisoners, riveted by the unfolding tragedy in cell 40, pressed against the small windows in the steel doors of their cells. Most of Vermont’s incarcerated women are short-timers, picked up for petty financial crimes, says David Turner the superintendent for Northwest. Sunday, August 16, 2009 happened to be the first day he served in that post.
An ambulance crew arrived and took Ellis to the hospital where she was pronounced dead at 7:35 a.m.
Lipschutz called Ellis’ death “Just another example of the maxim: ‘We don’t care. We don’t have to.’”
Waiting to Happen
There are cracks in all our paths that can open onto disaster. Ashley Ellis seemed to trip into more than her share. Her 2007 car accident was just that, an accident. Her auto insurance had expired two days before, but she was not speeding or impaired when she got distracted by one of her dogs and hit a man on a motorcycle. He suffered terrible injuries, was put on a ventilator, and is in a wheelchair.
Ellis’ own injuries emerged over time. “Ashley was horrified by what she had done,” said Ellis’ grandmother. In the two years between the accident and her incarceration in the Northwestern Correctional Facility in Swanton, Ellis became a licensed nursing aide and “took care of people on ventilators,” said Mary Kay Lanthier, her lawyer. “That was all she knew to do, since she couldn’t help the man she hit.”
She also dropped almost 40 pounds from her already thin 126-pound frame, and her eating disorder became so severe she sought treatment. With a suspended driver’s license, her local options were few, and her state health insurance would cover only 10 days hospitalization in a specialized center. At some point she developed a drug dependency, and the doctor performing her autopsy, according to the police report, found 17 cigarettes and some Suboxone pills (prescribed to treat opiate dependence) wrapped in electrical tape in her vagina.
But if Ellis was flawed and fatally unlucky, PHS and the Vermont Department of Corrections had their own problems. They knew the system was full of holes: From January 2008 to May 2009, PHS reported 169 sick-call and pharmacy violations system-wide, and Corrections imposed $19,200 in fines. From August – the month Ellis died – through October 2009, Northwest alone racked up 43 additional penalties.
The contractor and the state were also unlucky. Other deaths under PHS have created only passing media ripples. But Ellis, a pretty young woman incarcerated on a misdemeanor, was an easy object of press attention and public sympathy.
“People admitted in newspaper comments,” says Vermont’s Defender General Matthew Valerio, “that ‘I wouldn’t give a damn’ if it had been a sex offender” who died.
This time, Vermonters wanted to know whom to blame. The prison nurses were the easiest target. “My analogy is guards at Abu Ghraib,” said Lanthier. “Sure the LPNs bear responsibility, but there is a systemic problem.”
It took Valerio a bit longer to reach that conclusion. When Ellis died, he said, “I pointed the finger directly at the nurse on duty [Connie Hall], but realized she was just the last one in line. Now I think PHS is to blame. … Profit-driven organizations are prone to cut costs. The system failed.”
That system began in 1996 when Vermont stopped running the prison health care system, privatized the service, and opened it up to bids from out-of-state, for-profit companies. Darla Lawton, an investigator with the Defender General’s office, attended a contract pitch that PHS won. “You had these companies saying, ‘We can take care of Vermont’s inmates,’ and I’m thinking you can’t even make your PowerPoint work. If nothing else, PHS is slick.”
While slickness may play in comfortable meeting rooms, it doesn’t go far in prisons where ill and impaired prisoners have few options. “Low staffing levels put Ellis in a position of not getting what she needed,” said Defender General Valerio. “It frequently happens, but usually no one dies.”
PHS’ $16.4 million-a-year contract allows it to staff Northwest and some other facilities on weekends (and many weekday shifts) with no one above the level of LPN. From Friday evening to Monday morning, only one PHS doctor is on call, by phone, to cover the more than 2,000 prisoners incarcerated in 2009, and many of the 7,000 to 8,000 people who pass through the state’s eight jails annually. Dr. John Leppman, a PHS physician, says he typically fields 20 to 30 calls on a weekend. Nurses can work 12-hour shifts. One nurse said she was ordered to work 36 hours straight because no one else was available.
In all but one prison, PHS’ contract allows it to substitute LPNs “without penalty if an RN is not available.” The substitution is not trivial: Lower-paid LPNs are less trained. “It is not clear,” says Valerio, “that an LPN would know that it would be life threatening” to delay potassium.
Martha Israel, an RN, quit her job at the women’s prison after “PHS hired an LPN to be nurse manager and my supervisor,” she said. “At the prison, nurse managers have to make patient assessments regularly, but I thought that was incredibly unsafe – and illegal,” since the State Board of Nursing allows only RNs and others who are more highly trained to make patient assessments.
When PHS’ contract was coming up for renewal in 2007, Israel warned then-DOC head Robert Hofmann, the Board of Nursing and the media about the use of under-qualified staff. “No one listened,” she said.
Staffing problems are exacerbated by turnover rates, said Israel, and “PHS’ reputation is so bad that good people don’t want to work with them, or stay.”
Lorene Gendron, who worked for PHS for two years as a prisoner advocate in Vermont, says that poor support, salaries and working conditions translate into high turnover. “They will hire any friggin’ warm body because they go through staff so much,” Gendron says.
Northwest “was understaffed and had trouble keeping people,” confirmed Dr. Charles Gluck, who retired several years ago. He worked one day a week at the women’s prison, typically seeing 20 to 30 patients. “If a patient comes in with that kind of background,” he said, referring to severe anorexia, “they should never have been admitted on a weekend, because no one is available. … The poor LPN [on duty when Ellis died] was stuck with it, and probably not qualified.”
Fewer highly-trained medical staff means cheaper operating costs, a goal that can also impact the quality and timeliness of care. Failing to treat prisoners who carry infectious diseases, for example, saves money. “Treating people with hepatitis C is a very expensive procedure,” said Gluck. “I had to argue adamantly, and talked about preventing patients from taking hep-C back out into the community. But they [PHS] were just not going to do it.”
Gluck said his fight for better care was also frustrated by delays for meds and X-rays. Since prisoners are not allowed to bring in their own prescriptions, new ones must be obtained either from PHS’ Texas-based supplier or in-house stocks. When neither is available, nurses, and sometimes even corrections officers, go to the local Rite Aid. Police reported Connie Hall as describing these pick-ups as “a courtesy thing that the staff does for inmates.”
Vermont’s contract with PHS allows entering prisoners to go two to three days without medication, except when orders are labeled “stat.” Then, even out-of-stock medications must be administered within two hours. Leppman would not say if his Saturday meds order carried that automatic trigger word, but Burroughs-Biron said that no available prison records included an order that Ellis’ potassium should be administered “stat.”
“There appears to have been a delay,” said Leppman. “If there was an unacceptable delay, then that was unacceptable.”
Some caregivers will not tolerate the unacceptable. One RN, who did not want to be named, said she risked her career to deliver prescribed meds. In 2006 one of her patients was in pain, but the prescribed Tylenol 3 would not arrive at the prison for days. The nurse knowingly violated the rules by taking Tylenol 3 another prisoner had left behind on release, and giving it to the suffering woman. “I did the wrong thing legally,” she said, “but I was trying to do what was right for my patient.” PHS fired her.
“When I heard about Ashley’s death, and the failure to provide meds,” said the woman, who is still in nursing, “I thought: ‘Here we go again.’ They don’t have enough staff, so they push people to the ultimate. I’ll bet a dollar to a dime that’s what happened to the LPN on the weekend Ellis died.”
In her two years as Vermont’s prisoner advocate, Lorene Gendron visited prisons and fielded grievances that included charges of medical care on the cheap. “I would say: ‘Why can’t you just give the patient the med they need.’ And PHS would say: ‘It’s too expensive, or not on our formulary.’ It was hard to see something so simple to do for someone, and not be able to get it done. There was so much pressure not to prescribe.”
“The fewer services they provide, the more money they make,” said Lipschutz.
“I’m still reeling,” Corrections Commissioner Andrew Pallito said of Ashley Ellis’ death. “Up until that point, they [PHS] were doing satisfactory work.”
In fact, Ellis’ was one of a number of untimely deaths in Vermont under Prison Health Services. A week into PHS’ first contract in 2005, Robert Nichols, suffering heroin withdrawal, died the first day of his imprisonment at Chittenden Regional Correctional Facility in South Burlington. According to the St. Albans Messenger, he never saw a physician and didn’t get his prescribed meds. His wife successfully sued PHS, and the 1997 settlement was sealed under a confidentiality agreement. The next year, the death of Michael Estabrook at the same prison sparked the state to fine PHS $36,000 for failing to follow department procedures.
Ten days after Ellis’ death, Michael Crosby, 49, died less than 12 hours after entering the South Burlington prison. An autopsy revealed multiple intoxicants and various serious conditions. “I saw the tapes [of his intake],” said Pallito. “He appeared OK. He wasn’t staggering.”
When PHS’ 2005 contract came up for renewal for 2007 – despite the deaths, the blistering New York Times exposé on PHS’ abuses nationwide, and warnings by nurses and others – Vermont renewed the contract. The new contract let PHS cut back on 160 hours – 20 shifts a week – of nursing care at the Northwest correctional facility alone. It eliminated the prisoner advocate position as a cost-cutting measure. Asked if money was the real reason, Gendron, who earned $14 an hour, said, “I’ll never be sure.”
Corrections, meanwhile, also allowed PHS to alter its contract so that it could use LPNs rather than RNs as clinical coordinators. Although Burroughs-Biron declined to say what reforms Vermont is considering for its next contractor, since the information might be used in litigation as a tacit admission of errors, the DOC head of health services acknowledged one change: “In future, the clinical coordinator, the person in charge of day-to-day functions, will be an RN.”
However, after clinic coordinator Renee Trombley was, as Burroughs-Biron put it, “removed from the facility” in the wake of Ellis’ death, another LPN, James Bessette, took over the position.
Revolving Barred Doors
“Vermont has a moral responsibility because they know what’s going on and closed their eyes to it,” said Seth Lipschutz, supervising attorney at the Vermont Defender General’s office. “And that responsibility extends to all of us.”
Correct Care Solutions (CCS), based in Nashville, Tennessee, succeeded PHS on Feb. 1, 2010 as the medical care provider for Vermont prisoners, and, like its four predecessors, was handed much of that responsibility.
In 1996, Vermont hired its first for-profit contractor, Florida-based EMSA Correctional Care. A few months before, a Massachusetts auditor’s report found that the company had overcharged that state $1.5 million for “unsubstantiated AIDS-related treatments,” according to The Boston Globe, which also reported charges that EMSA did a “poor job of caring for inmates.”
A year later, Lipschutz told the Globe that complaints of inadequate care in Vermont rose “exponentially” under EMSA.
In January 1999, EMSA was bought by PHS. In July 2000, Vermont moved on to Correctional Health Services, and six months later the contract was assigned to Correctional Medical Services (CMS). Vermont dumped CMS on January 31, 2005 after a series of problems, including seven in-prison deaths in a year. The investigation that followed concluded that CMS had “inadequate staff [that] would lead to significant medical problems and errors in medication administration,” and called for “drastic measures to insure contract compliance.” 
CMS had also used unlicensed staff, and once, after a prison head objected, the company simply transferred the unqualified employee to a different facility.
An auditor’s report on CMS in 2004 concluded that Vermont had no real way to fulfill its responsibility to evaluate the quality of the company’s care. Pallito, the Corrections Department’s management executive at the time, acknowledged the department’s failings: “We didn’t belly up to the bar to monitor them,” the website www.realcostofprisons.org reported him saying. “I think we have made some improvements.”
Pallito, now Vermont’s Corrections Commissioner, called Ellis’ death “an isolated incident. ... [PHS has] been in Vermont for four years,” he told The Burlington Free Press. “On balance, it was not bad.”
Bad or not, pushed or jumping, PHS left on January 31, 2010 and Correct Care Solutions is the latest contractor to swing through the revolving barred door. It has much in common with its predecessor. Both PHS and Correct Care are for-profit, out-of-state providers based in Tennessee. And both have been led by the same CEO, Gerald (Jerry) Boyle.
Before founding Correct Care in 2003, Boyle headed Prison Health Services from 1998 to 2003, during much of the period covered by the New York Times investigation that found PHS’ medical care “around the nation has provoked criticism from judges and sheriffs, lawsuits from inmates’ families and whistle-blowers, and condemnations by federal, state and local authorities. The company has paid millions of dollars in fines and settlements.”
Before he headed PHS, Boyle was a vice president at EMSA when it held the Vermont contract. Boyle visited the state several times, according to CCS executive vice president Patrick Cummiskey.
Cummiskey also revealed that Correct Care will assume far more responsibility than PHS, taking charge not only of physical health services but also mental health care as well.
Correct Care will probably retain many of the same staff and – barring a quite different contract – the same potential for medical lapses and lax oversight.
Sandra Gipe hopes that her granddaughter’s death will spark reform. But an investigation of Ellis’ death that fails to reach beyond finger-pointing and narrow fact-finding may end up obscuring the extent and causes of a systemic breakdown that was remarkable for its tragic outcome, rather than its particular errors.
No matter how good the investigation, the contract or the new provider, a fundamental contradiction will remain: For-profit companies pit the health care needs of an often despised population against their own corporate need to turn a profit. In the latter, at least, PHS was successful: Healthcare revenues from continuing contracts for the third quarter of 2009 – the quarter when Ellis died from lack of a $4 bottle of pills – increased almost 28 percent from the prior year’s third quarter, to $160 million.
 From Kurt Kuehl, DOC attorney. Vermont DOC medical care contract providers: EMSA, August 7, 1996 – June 30, 2000. Correctional Health Services, original contract period was July 1, 2000 – June 30, 2003. However, the contract was amended to assign it to Correctional Medical Services and the amendment became effective on January 24, 2001. That contract was then amended two times to extend the end dates to June 30, 2004 and then January 31, 2005. Prison Health Services, February 1, 2005 – January 31, 2010. CCS, February 1, 2010 to present.
This article originally appeared on www.vtdigger.org on December 14, 2009. It is reprinted with permission of the author and the publisher, and has been updated to reflect CCS as the new medical care contractor for the Vermont DOC.