Are Correctional Institutions HIPAA Covered Entities? Oversight of Correctional Healthcare Revisited; CMS FAQ: Consolidated Appropriations Act, 2023

Highlighted Stories

Editor's Note

No, it’s not Tuesday morning—the usual day for the Weekly Update! Since tomorrow is Christmas Eve, we decided to send out this final Weekly Update of 2024 a day early.

Today’s first highlighted story comes out of Connecticut. It focuses on two investigative journalists’ efforts to access de-identified health records of inmates who died in the custody of Connecticut’s Department of Corrections (DOC). The state’s Freedom of Information Commission (FOIC) ruled that, while the DOC violated FOIA and was not a HIPAA-covered entity as it had claimed, the requested records were still protected under statutory privilege. On appeal, a superior court judge upheld the FOIC’s decision, affirming the statutory privilege claim but apparently leaving the DOC’s HIPAA-covered entity assertion unaddressed.

As many of our subscribers know, correctional organizations often self-determine whether they are HIPAA-covered entities. In this case, however, another state regulatory agency determined that the DOC is not a covered entity, despite the DOC’s assertion. While this may raise questions about the applicability of HIPAA in corrections, COCHS maintains that healthcare in corrections should align with the broader healthcare system. This alignment could eliminate the isolation of correctional healthcare as its own “island” and facilitate the sharing of health records between covered entities. The reasoning behind the FOIC’s decision remains unclear—perhaps an anomaly—but it’s an issue we’ll continue to monitor closely. (As subscribers may recall, this isn’t the first time we’ve discussed HIPAA in a correctional context. In the Editor’s Note of October 15, 2024, COCHS highlighted cases where proprietary correctional health vendors mishandled personal health information. We noted that as Medicaid enters the correctional healthcare space, providers may face increased scrutiny over their ability to comply with HIPAA regulations.)

The next articles revisit a theme we’ve explored recently (see Editor’s Note of December 10, 2024): questioning the effectiveness of oversight by courts or external agencies in improving healthcare within corrections.

First, back to San Diego County, where the sheriff was sued for failing to comply with the Americans with Disabilities Act. As part of the settlement, the sheriff has agreed to make changes, with two independent inspectors monitoring compliance. But will this monitoring make a difference? As the second San Diego story highlights, the jail has a history of knowingly violating regulations against housing multiple mentally ill people together—even after a grand jury criticized the practice.

Now, to Oklahoma County. Yet another death—an apparent suicide—has reignited calls for the state Supreme Court to mandate surprise health inspections, as highlighted by The Oklahoman. The Oklahoma County Criminal Justice Authority (OCCJA), which operates the jail, continues to push back against such inspections. After a lower court ruled against the OCCJA, the State Health Department conducted an inspection from December 6–9. Inmates reported being moved out of overcrowded cells ahead of the inspectors’ arrival.

In addition to the stories from San Diego and Oklahoma, our next highlighted article comes from Baltimore, Maryland. In a decades-long lawsuit challenging healthcare and mental health conditions in Baltimore jails, a dispute has arisen over who will serve as the new monitor. The state has put forward nominees that the ACLU argues lack credibility, raising concerns that these monitors may not provide effective oversight—essentially a case of the fox guarding the henhouse. In response, the ACLU has proposed its own set of alternative candidates for the role.

Returning once more to Connecticut, the Greenwich Times reports that the state commissioned a study on improving conditions in its prison system. The report recommended adopting modern rehabilitative practices, addressing mental health needs, and improving programming to reduce misconduct. However, it also found that front-line and mid-level correctional officers are often unaware of these innovations and tend to resist change.

The final article is from CMS and combines a State Health Official letter with an FAQ, offering guidance to states on sections 5121 and 5122 of the Consolidated Appropriations Act, 2023. Remember, these changes take effect January 1, 2025.

And with that, we at COCHS wish all our subscribers Happy Holidays! The Weekly Update will be back on Tuesday, January 7, 2025.

HIPAA

The Freedom of Information Commission (FOIC) correctly upheld exemptions claimed by the Department of Corrections (DOC) in denying two investigative journalists access to de-identified inmate medical records, according to a New Britain Superior Court ruling. In April 2021, the journalists filed a FOIA request for records related to inmate deaths in DOC facilities. While the DOC provided some records, it withheld others, including incident reports and health records, citing privacy concerns. Although the FOIC found the DOC is not covered by HIPAA, the judge ruled that the requested health records were protected by statutory privileges that could not be adequately de-identified to ensure patient privacy.

Oversight of Correctional Healthcare

San Diego County Sheriff Kelly Martinez has agreed to make significant changes to San Diego jails to better accommodate people with disabilities. The agreement follows nearly 18 months of negotiations with a group of civil rights attorneys who sued to force the sheriff to comply with the Americans with Disabilities Act. The lawsuit, filed in February 2022, argued that none of the county’s jails met ADA standards and that the Sheriff’s Office had engaged in “systemic and willful discrimination against, and failure to provide reasonable accommodations in, programs, services, and activities to incarcerated people in the Jail who have disabilities.” Under the agreement, two independent experts will be appointed to determine, through twice-yearly reports, whether the Sheriff’s Office is complying with the terms of the settlement. Over the years, San Diego County has paid out tens of millions of dollars in legal settlements to people gravely injured in jail and to the families of those who died there.

For years, San Diego County jails have been triple-bunking people in cells designed for no more than two. State regulators have repeatedly told the Sheriff’s Office to stop the practice, and the department itself has acknowledged that it’s dangerous and violates state code. It’s not clear when the Sheriff’s Office started triple-bunking people. But the earliest red flag was raised about the practice in a 2016 report by the county’s civil grand jury, which described triple-bunking as “excessive” and “a configuration likely to cause conflict.”

The death of another inmate in the Oklahoma County jail — by apparent suicide, on Dec. 10 — shows the need for the state Supreme Court to mandate surprise health inspections, even though the jail had just had a four-day inspection starting on Dec. 6, the Oklahoma State Department of Health argues in a high court filing. The Oklahoma County Criminal Justice Authority, which runs the jail, argues that its pending appeal of the dismissal of its separate district court case against the state Health Department, demanding that surprise inspections be banned, will get the issues of jail access and timing into the appellate process. The Health Department argues in its latest Supreme Court brief that failing to order the jail to let health inspectors in anytime is "a threat to human safety" leading to "loss of human life."

After Maryland hired Butler Snow LLP last year to defend the state in a decades-old lawsuit over healthcare and mental health in Baltimore jails, the firm shifted blame onto Dr. Michael Puisis, the medical monitor, accusing him of vague and shifting standards. This criticism overlooked systemic issues, including staffing shortages and a revolving cast of private medical vendors hired under questionable contracts. The state has since proposed three doctors to replace Dr. Puisis, while the plaintiffs, led by the ACLU’s National Prison Project, have nominated their own candidates. In a recent filing, the ACLU criticized the state’s nominees for ties to Butler Snow, lack of experience as independent monitors, and prior credibility issues flagged by judges.

A $448,000 state Department of Correction study recommended ending in-cell restraints, improving mental health services to prevent misconduct, and replacing invasive strip searches with technology to detect contraband. While top officials support modern rehabilitative practices, many front-line and mid-level officers are unaware of safety innovations, don’t always support changes, and lack awareness that programming should help prevent behavioral issues.

Consolidated Appropriations Act, 2023

CMS has issued a State Health Official (SHO) letter and frequently asked questions (FAQs) that provide additional guidance to states on sections 5121 and 5122 of the Consolidated Appropriations Act, 2023 (CAA, 2023). The FAQs address the applicability of requirements to federal prisons and clarify state Medicaid and CHIP program obligations to support implementation of the coverage, eligibility, and enrollment activities required.

Opioid Epidemic

Researchers from Canada and Australia sought to assess the return on investment for Canada's needle exchange program, and the potential impact of scaling it up, as part of efforts to eliminate blood-borne infections in prisons. Using a modeling study, they found that expanding the program to 50% of people in all federal prisons who inject drugs from 2025 to 2030 would prevent 15% of new hepatitis C cases and 8% of injection-related infections compared with the status quo.

Across the country, many leading law enforcement officials remain hostile to buprenorphine and methadone, another highly effective addiction medication, denying a uniquely vulnerable population access to high-quality care amid the worst drug epidemic in the country’s history. A STAT investigation has found that opposition to medications for opioid use disorder is pervasive in local jails, state and federal prisons, specialized drug courts, local police precincts, and the halls of the Drug Enforcement Administration. Despite significant improvements in medication access since the onset of the opioid crisis, much of the nation’s criminal justice system often operates with indifference to their lifesaving potential, treating them as if they were no different than illegal opioids.

Young Black men in cities across America died of drug overdoses at high rates during the 1980s and 1990s. In the current fentanyl crisis, older Black men in many cities have been dying at unusually high rates. In recent years, the opioid epidemic has spread dangerous drugs to every corner of the country, with overdoses increasing among younger, whiter, and more rural populations. While that broader trend appears to be ebbing, the crisis continues to disproportionately affect Black men aged 54 to 73.

PHA Healthcare collects millions of dollars a year to treat hundreds of people struggling with addiction. But many of its patients have not gotten better. Instead, placed by the company in what are effectively government-funded drug houses, they have relapsed, fallen deeper into addiction and sometimes died. The operators of PHA Healthcare had no significant experience providing drug treatment. But they built a multimillion-dollar business that appears to rely on a practice health officials described as both illegal and increasingly common in Baltimore: trading housing for treatment money.

Incarcerated Women

Compared with male inmates, incarcerated women report higher rates of sexual assault in prison. In September, federal prosecutors announced a civil rights investigation into sexual abuse at both Chowchilla and the California Institution for Women in Chino, citing multiple reports of groping, inappropriate touching and rape by correctional workers. Over the last two years, more than 100 formerly incarcerated women have brought lawsuits against the California Department of Corrections and Rehabilitation and current and former correctional officers, alleging graphic incidents of sexual abuse by prison staff dating back a decade.

The federal government agreed on Tuesday to pay about $116 million to settle lawsuits by 103 women who said they had been sexually abused while in custody at a now-shuttered women’s prison in Northern California where such claims were rampant. The Federal Correction Institution in Dublin, Calif., a low-security facility about 30 miles east of San Francisco, had at one point housed 600 inmates and had stood out as a particularly egregious example of abuse in women’s prisons. At least seven correctional officers have pleaded guilty or been convicted on charges of sexual abuse at the prison. The case against an eighth officer is still pending. Last year, a former prison warden, Ray Garcia, was sentenced to 70 months in prison and 15 years of supervised release for sexually abusing three female inmates and lying to federal investigators.

In addition to the isolation, degradation, violence, and abuse common in imprisonment, people often endure not just inadequate “healthcare” but outright medical neglect—or worse, healthcare used as a weapon. “Prison healthcare” can function as another form of punishment, even torture. Requests for care are often dismissed, with prisoners accused of faking symptoms (“malingering”) or seeking drugs. Women, in particular, have faced unnecessary pelvic exams for minor complaints, underscoring how medical practices can be tied to sexual abuse.

The Urban Institute was provided access to women at the Las Colinas Detention and Reentry Facility (pictured in above photo) in Santee who were interested in participating through interviews. There were claims of systemic delays in care are inconsistent with established procedures that prioritize urgent and emergent healthcare needs. Pregnant patients are scheduled for the next available OB/GYN clinic appointment and receive timely follow-ups both within the facility and at external healthcare organizations. Reported delays noted in the report are often linked to external provider availability rather than internal inefficiencies. The Sheriff’s Office did ask the report's authors for corroborating information to support the report findings prior to this release.

BOP

Tens of thousands of low-risk prisoners have remained incarcerated for up to a year past their release dates under the First Step Act. The law allows inmates to earn credits for early release through education, behavioral, substance abuse, and vocational programs, but it has overwhelmed the Bureau of Prisons' capacity to process releases. Officials say delays are worsened by the slow process of awarding contracts to private vendors that operate transitional housing. While the ACLU acknowledged these challenges in its lawsuit, it accused the bureau of treating the law as optional—citing the BOP’s change of wording from “shall” to “may” in its regulations.

ICE & New York City

For years, federal immigration agents had a reliable place to find undocumented immigrants targeted for deportation: New York City jails. U.S. Immigration and Customs Enforcement (ICE) officers would focus on immigrants in police custody or serving short jail sentences, requesting that the city hold them for up to 48 hours after their release. This cooperation—sometimes leading to immigrants being detained far longer than the requested period—resulted in a class-action lawsuit. The case was resolved when a judge ordered the city to pay up to $92.5 million in damages.

Tuberculosis

Moving individuals into and out of overcrowded facilities with poor airflow increases the risk of spreading active TB disease. Frequent transfers between facilities also make it harder for individuals with inactive or active TB to complete treatment, which can take several months. Relocation may disrupt medical care, making it difficult for patients to stick to their treatment plans. Correctional facilities should work closely with other facilities and health departments to ensure continuity of care, helping individuals complete treatment even if they are transferred or return to the community.

COVID-19

This peer-to-peer education guide provides a resource for corrections agencies and confinement facility administrators and staff to meet the challenges of educating individuals who are incarcerated in their facilities about COVID-19 and general health literacy through a peer education approach. The guide features a case study on the New Mexico Peer Education Project from Project Extension for Community Healthcare Outcomes as a best practice example of working in the New Mexico Corrections Department.

State Roundup

Alabama

No state has a longer or more profit-driven history of prison labor than Alabama. With a system dating back over 150 years—including the brutal convict leasing era that followed slavery—the state has become a model for commercialized incarceration. Many inmates, disproportionately Black, are sentenced to hard labor and forced to work for free inside prisons, doing tasks like mopping floors and laundry. Since 2018, more than 10,000 inmates have logged 17 million work hours outside prison walls, working for governments and businesses, including car-part manufacturers, meat-processing plants, and Walmart distribution centers.

California

Prop. 36, passed overwhelmingly by voters in November, will likely increase county jail populations by stiffening penalties for certain crimes and allowing district attorneys to charge some misdemeanors as felonies, according to the Legislative Analyst’s Office. Yusef Miller, who leads a group of families whose relatives died in San Diego jails, said more incarcerated people will put pressure on jail systems that are already ill-equipped to handle more inmates. According to Justice Department statistics, a surge in overdoses drove the trend of increasing jail deaths. The other leading causes were suicide and the catch-all term “natural causes.”

A multiyear KQED investigation and an eight-part podcast called On Our Watch found a persistent code of silence among New Folsom officers that went largely unchecked by prison leadership and the California Department of Corrections and Rehabilitation (CDCR). An exclusive analysis of hundreds of internal use-of-force records, dozens of leaked documents and videos, and interviews with current and former CDCR officers revealed a culture of cover-ups that enabled the abuse of incarcerated people, officer-on-officer harassment and at least two homicides at the prison.

Georgia

The Senate Supporting Safety and Welfare of All Individuals in Department of Corrections Facilities Study Committee approved a list of recommendations aimed at improving conditions for people inside Georgia’s prisons. The approved recommendations include expanding mental health services for incarcerated individuals and staff, conducting a pay study for corrections employees, and advocating for federal approval of cellphone and drone-jamming technology. However, the committee rejected several proposals, such as establishing an oversight body to monitor jails, providing new de-escalation training for guards, and enhancing reintegration programs.

Kentucky

Kentucky is not legally required to use taxpayer money for gender-affirming surgeries for incarcerated individuals, Attorney General Russell Coleman ruled. The Department of Corrections sought the opinion while amending its regulations on prison healthcare. Coleman stated that the constitutional ban on cruel and unusual punishment does not obligate the state to fund such procedures, even if deemed “medically necessary” by professionals. He added, “There is no controlling legal authority that compels the department to abandon common sense.”

Nevada

Nevada health officials say they found several health violations in several state prisons including sewage problems. The Division of Public and Behavioral Health conducts regular inspections reporting the results to the Nevada State Board of Prison Commissioners. In its November meeting, the agency spoke about improper sanitation and cross-contamination at facilities such as the Northern Nevada Correctional Center. Specifically, "substantial health hazards were observed within the Culinary Unit at the time of inspection" and also unrepaired broken pipes at the Carson City location.

New York State

New York's governor has ordered more than a dozen prison staffers to be fired over the fatal beating of an inmate earlier this month. Gov. Kathy Hochul said in a statement that she has directed the state's corrections department commissioner to begin the process of terminating 14 workers involved in the fatal attack at the Marcy Correctional Facility. Robert Brooks died on Dec. 10 after an encounter with officers the day earlier at the prison located in Oneida County.

North Carolina

A new initiative aimed at addressing mental health and expediting case processing for inmates is being launched at the Pitt County Detention Center. The Capacity Restoration Program, a collaboration between the Pitt County Sheriff’s Office and the North Carolina Department of Health and Human Services (DHHS), seeks to provide mental health support to inmates awaiting trial. Previously, inmates with mental health disorders were sent to a state hospital for evaluation and treatment, a process that could take up to 180 days.

Virginia

Virginia’s new corrections ombudsman, Andrea Sapone, is hitting the ground running, pledging to investigate allegations of mistreatment and address health and safety concerns raised by incarcerated people and their families. Hired in late September by the Office of the State Inspector General, Sapone said her office has already begun tracking letters and emails from those seeking assistance. The Office of the State Inspector General (OSIG) plans to improve transparency and accessibility for its corrections ombudsman unit by updating its website to include the unit’s mailing address and an online complaint form. Sen. Dave Marsden, D-Alexandria, a member of the Corrections Oversight Committee, said that he and other lawmakers are frequently contacted by incarcerated people and their families seeking assistance.

Reentry

Ninety-five percent of incarcerated people in North Carolina will eventually be released back into the community — roughly 18,000 people return home each year from state prisons and thousands more from county jails. For many people, walking out of the doors of a prison or jail marks the start of new hardships and challenges as they work to rebuild their lives in the community. Challenges related to navigating life with a criminal record abound, from securing employment to finding a safe place to live — and people often don’t have the means or support to do so successfully.

Vermont is expanding a program that helps incarcerated individuals and corrections staff get a college education. Soon, people who have been recently released from prison will be able to continue their education, too. Beginning Jan. 1, people ending a prison sentence will qualify to receive re-entry vouchers from the Community College of Vermont, allowing them to take two free classes at the college per semester for a year after being released.

Correctional Health Care Providers

Wellpath

Sen. Elizabeth Warren (D-Mass.) is urging top executives at troubled prison health-care provider Wellpath Holdings Inc. not to abuse the company’s bankruptcy proceedings by shortchanging incarcerated patients “harmed by medical malpractice.” H.I.G. Capital-backed Wellpath, one of the nation’s largest providers of health-care services to prisons and jails, should commit to ensuring fair payments for claims of deficient medical care while it restructures in Chapter 11, Warren said in a letter sent to Wellpath CEO Ben Slocum and the founders of H.I.G. that was seen by Bloomberg Law. Wellpath, has for years been dogged by wrongful death and personal injury lawsuits. For more about Wellpath's Bankruptcy, see Editor's Note of November 12, 2024.

Santa Barbara County has hired two people to oversee the jail healthcare system and improve services following concerns about its contractor. The county recently appointed Dr. Carrick Adam as chief correctional health medical advisor and Aaron Stilwell as correctional health quality care improvement manager. This decision follows findings that Wellpath, the jail healthcare provider since 2017, faced frequent staffing shortages and failed to meet program requirements. A Grand Jury report earlier this year revealed the Sheriff’s Office failed to monitor these shortages properly or adjust invoices, despite contractual provisions to reduce payments for excessive missed hours.

Eleven Alameda County sheriff’s deputies and jail clinicians pleaded not guilty Monday to felony abuse charges in the 2021 death of Maurice Monk, who died after allegedly languishing for days inside the Santa Rita Jail with little in the way of care or attention by the jail’s staff. Healthcare in the jail is provided by Wellpath. Alameda County’s now-former District Attorney Pamela Price did not release any information about the case beyond the charges themselves, and an affidavit outlining her office’s justification for seeking each arrest warrant has been sealed.

An Alameda County Superior Court judge has tentatively ruled that Wellpath must turn over documents related to the in-custody death of an Oakland man at Santa Rita Jail, despite the healthcare company's argument that the report is privileged. Wellpath has already provided significant documentation but has refused to turn over what is described as a key document — a mortality report that lists recommendations of the company’s internal probe into Maurice Monk’s death.

Fresno County’s expenses will rise by millions in the next fiscal year due to changes in funding sources and increased costs for healthcare services in county jails. The Fresno County Board of Supervisors unanimously approved a contract amendment exceeding $200 million for jail medical and behavioral healthcare services provided by California Forensic Medical Group (CFMG), also known as Wellpath. This amendment brings the total cost of the county’s agreement with Wellpath, which began in April 2018, to $394 million. For the remainder of fiscal year 2024-25, the contract will cost the county $23.4 million.

The Massachusetts Department of Correction (DOC) announced the initiation of a procurement process to solicit bids for comprehensive services at Bridgewater State Hospital (BSH), which houses approximately 230 individuals. DOC’s current partnership with Wellpath Recovery Solutions is set to conclude in June 2025. In May 2024, the DOC awarded a five-year, $770 million contract to VitalCore Health Strategies to deliver comprehensive health care services across 11 state correctional facilities.

NaphCare

The Mesa County Jail is obligated to provide health care to all of its inmates, but what about more controversial medical issues like abortions, vaccines, and HIV drugs? The contract between the county and NaphCare for inmate medical care is expected to rise from $5.7 million to just under $7 million by 2029.The Sheriff’s Office told us there have been 58 pregnant inmates so far this year at their facility. “They receive medical care from NaphCare. Follow-up appointments, sometimes even off-site appointments, to ensure that their pregnancy is going well for them and their baby,” said Jeff Byrne, a captain with the Mesa County Sheriff’s Office. NaphCare will not provide an abortion to an inmate.

The Spokane County Commission will decide Tuesday whether to approve a $685,000 one-month contract extension for NaphCare, the private company providing medical services at the Spokane County Jail. NaphCare has overseen inmate healthcare since commissioners outsourced the services in 2016. Concerns about the Alabama-based company’s practices surfaced soon after the deal was finalized. In 2022, a federal jury awarded $27 million to the family of Cindy Lou Hill, who died in the jail after being evaluated by a NaphCare nurse and sent to a medical cell. Hours later, she died from a bacterial infection caused by a ruptured intestine.

Armor Health

A new inmate medical provider will render care at Lackawanna County Prison beginning next month. County commissioners voted to award a three-year contract for inmate medical services to Armor Health. The estimated cost of Armor’s services is about $4.8 million in the first year and about $14.7 million over the term of the agreement. Armor will replace Wellpath, the prison’s current medical provider, effective Jan. 15.