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Vermont Law Shields For-Profit Healthcare Provider from Public Scrutiny

When Vermont's Department of Corrections hired a for-profit healthcare provider in 2010 to treat the state's 2,000 prisoners, it also hired an independent third-party to keep tabs on the private contractor.

And yet, Correct Care Solutions (CCS) has still committed gross negligence, medical malpractice, and cruel and unusual punishment in its treatment of prisoners, according to a pair of lawsuits filed against DOC in 2014.

Equally confounding is that reports by the independent monitor—Vermont Program for Quality in Healthcare (VPQHC)—are being shielded from public scrutiny and are immune from discovery in court proceedings thanks to a state law that promotes secrecy over honesty and accountability.

A lawsuit filed by the family of Robert Mossey, a prisoner at Vermont's Northern State Correctional Facility when he hanged himself there in August 2013, alleges that his mental healthcare was inadequate and his death preventable if only CCS doctors had followed up with Mossey after prescribing new psychiatric medication.

Another lawsuit filed on behalf of an unnamed mentally ill prisoner alleges that he was left untreated in solitary confinement for 22 hours a day, even though CCS knew he needed mental healthcare.

Reports by VPQHC—which audited all eight of the state's correctional facilities and provided those monitoring reports to DOC on a quarterly and biannual basis until its contract expired at the end of 2013—would likely shed light on any systemic failures by CCS in treating prisoners, and would certainly be useful in court.

But state law reportedly defines government contractors like VPQHC as a "peer review committee... formed to evaluate and improve the quality of health care...," exempting VPQHC's reports from public record.

The reason, according to state Sen. Claire Ayer, a Democrat: Private medical providers must be given immunity or they would never admit their mistakes.

"For example, if I made some mistake by omission and I knew I'd get in trouble for even talking about it, I wouldn't be able to discuss it and learn how to do it better," Ayer said. "This (immunity) is to open that door so people can discuss how they did things, how they approached things so they can do them better. And the only way that I've seen that we can make that work is to make it confidential so people will actually talk about what didn't go well."

If only that standard were applied to the criminal code, state prisons across the country would be a lot less full.

David Sleigh, a lawyer representing Mossey's family, acknowledges that VPQHC's reports are shielded from public scrutiny, even in a court proceeding. But, he argues, the constitutional right to a fair trial supersedes the Vermont statute.

"Certainly there's a great body of case law that says that statutory and evidentiary privileges are trumped by a legitimate constitutional right to due process and a fair trial," Sleigh said, adding he would seek the release of the VPQHC reports.

"Basically, when someone claims that there's a systemic failure to provide adequate medical care, as we are in this suit, getting the state's own assessment of the medical care is highly relevant."


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