Micaela Gelman, professor of New York University School of Law, penned the article, Mismanaged Care: Exploring the Costs and Benefits of Private vs. Public Healthcare in Correctional Facilities, published in the November 2020 issue of the New York University Law Review.
The article compares current private health care operations in prison systems to three public models available in other institutional settings. Gelman said that although others have problems inherent in their operations, nonetheless, they are more productive and cost efficient than privatization of health care.
Gelman begins with the history of health care privatization in corrections. In the 1970s, prison populations began to explode because of the “tough on crime” laws. This explosion had a profound effect on health care. Prisons could not keep up with the needs of prisoners or costs for caring for them on their own. The primary concern of prison administrations was security, and health care was secondary. Whatever decisions were made about the medical treatment of a prisoner first had to take security into consideration. Moreover, the courts have historically ruled in favor of penological interests and allowed prisons to govern themselves, even if these decisions infringed upon prisoner rights.
The era prior to privatized health care was called the “direct service” period. Health care in prisons was accountable only to the Department of Corrections, not to any independent medical board. Many of the doctors in prisons practiced under restricted licenses, or possibly had no licenses at all. And that is still the case half a century later. Then a series of federal cases in the mid-1960s showed the courts intervening when prisoners were denied federal rights.
In Estelle v. Gamble, the US Supreme Court ruled that deliberate indifference on the part of the correctional health care workers constituted cruel and unusual punishment. After this decision, correctional facilities were not only experiencing skyrocketing costs for health care, but were opened up to litigation for failing to provide adequate care.
The early 1970s saw prisons and jails come to the conclusion that contracting services for health care to private companies reduced costs and insulated the government from liability. Lastly, it was presumed that privatization would improve the quality of health care since private companies would be using fully licensed professionals. Delaware was the first state to completely contract all its prison health care services to a private company.
Private health care companies started springing up all over. Today’s modern industry is dominated by two major corporations—Corizon and WellPath. A 1999 survey found nine state prison systems out of 27 reviewed used a private health care provider. By 2014, the Reason Foundation reported 30 states contracted in some capacity with private health care providers, 24 of them with comprehensive coverage. And, by 2016, private health care had become a $3 billion industry nationwide.
Gelman says privatization has failed for several reasons. The first is lack of true competition. Most providers build renewal clauses in their contracts for ease of continuance. In addition, if a state chooses for some reason not to renew with one provider, it generally cycles through other already established providers, then back again to its original provider.
Gelman mistakenly notes that courts have ruled in large majority that private health care companies’ records are not open to scrutiny. Private companies can keep much adverse information such as lawsuit payouts from state entities trying to hire the company. This is not true. The Human Rights Defense Center, the publisher of Prison Legal News, has repeatedly and successfully sued private health care companies under state public records laws to bring them under the scope of such laws. The lack of interest in others pursuing the path HRDC has broken is another matter.
This makes for a closed market and discourages competition. Lack of competition affects quality of care. Additionally, decisions are made by the contractor (prisons), not the patient (prisoners), so payment for services rendered is not contingent upon quality of those services. It creates a stale market which has no reason to meet the same basic standards of care found in society.
Cost cutting in private health care is more often based on the quantity of care provided and not the quality. Denial of emergency services, specialist care, staffing and medications to a large group of people translates to more profits for the company. Gelman said accountability for inadequate medical treatment in prison is difficult. The legal hurdles a pro se prisoner must meet to hold a private health care provider responsible for its actions make it next to impossible to sue. The standard of a federal deliberate indifference claim alone means a prisoner must prove that the health care worker acted knowingly and with deliberate disregard for all standard medical procedures.
Gelman said other health care models would prove more beneficial and cost effective for Corrections. The three models examined were all forms of public health care with accountability and proven incentive to provide quality service. Some are already in use and established in other aspects of community living, such as clinics for the homeless or drug addiction clinics, which would make continuance of treatment and transmission of records easier from current social living into the prison environment and back out again.
Lower litigation costs alone would make public health care more profitable for states, and government loan repayment programs would ensure sufficient staffing and quality care for all prisoners.
“Moving forward, governments should consider alternatives to private companies and turn to the public-driven models,” Gelman concludes. “Continuity of care will improve inmate-patients’ health not only during incarceration, but also upon release.” Providing adequate health care for prisoners has been the most difficult endeavor for the American police state which cannot and will not provide adequate health care for its non-prisoners citizens either.
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