| CRIMINAL JUSTICE
By Royal Calkins
EXTRA: San Francisco Chronicle weighs in with major package on Wellpath’s failings statewide.
UPDATE: This article, posted a week ago, states that four inmates had died in the Monterey County Jail this year, the most recent in June. But, unknown to Voices, another inmate was found unresponsive in his cell on June 29 and died on July 4 at Natividad Medical Center. Technically it may not be recorded as an in-custody death like the others because the jail officially officially released him from custody the day before he died. The Sheriff’s Office has not released his name but he is referred to by the initials A.B. in the Hernandez settlement court file.
As inmate deaths continued piling up in the Monterey County Jail, investigators for reform-minded lawyers kept finding evidence that the jail’s health care provider, Wellpath, had violated provisions of its contract in death after death after death — at least 11 in a row through April of this year. The lawyers wrote about the streak in documents seeking huge fines against the company. Then there was another death this May and then another in June, so the lawyers had to keep updating their court filings in preparation for a big court showdown next month.
That information is part of a huge and disturbing cache of papers filed by a high-powered team of prisoner-rights lawyers representing inmates as part of the federal judiciary’s long-term oversight of what could be one of the most unsafe jails in California. An Aug. 24 hearing will determine whether Wellpath’s failings warrant recurring fines of up to $1 million. That’s $1 million every six months until the company complies with a long list of federal mandates on medical, mental, dental care and other standards for a rotating roster of 900 or so men and women in the Monterey County Jail.
What Wellpath allegedly did wrong in connection with the jail deaths and other failings is unfortunately not part of the public record in the case file. That and thousands of pages of court filings, including regular inspection reports by doctors and other court-appointed monitors, are either sealed or blacked out. (See Secrecy in the court.)
Tennessee-based Wellpath is possibly the largest provider of health care in U.S. jails and prisons. Including litigation involving sister companies, such as its predecessor, Monterey-based California Forensic Medical Group, Wellpath also could be the most-sued company in the field. In a 2019 investigative report, CNN said Wellpath had been sued more than 70 times for alleged wrongful deaths at some 500 facilities in 32 states. The company has grown since then. CNN reported on abuses such as Wellpath employees tearing up referrals that would have enabled prisoners to see outside doctors. That’s because the company, not the jails or prisons, would have had to pay for the treatment.
Wellpath’s many critics say the company’s poor performance is a result of overly rapid growth and an oversized effort to increase profits by declining to provide essential medical care.
Wellpath officials acknowledge their emphasis on efficiencies but deny incentivizing failure to provide proper care.
The county currently pays Wellpath $15 million annually to provide care for the inmates. The for-profit company is owned by a hedge fund, H.I.G. Capital, which has acquired or merged with several correctional health care companies already under considerable scrutiny from the courts and other agencies. Despite a large debt load from the acquisitions, H.I.G. has been on a course of rapid expansion into child health care, hospices and numerous other enterprises. A recent report by the Private Equity Stakeholders Project details many of the company’s troubles, including the 2021 conviction of its then-president, Gerard Boyd, who pleaded guilty to taking part in a 13-year bribery scheme with a Virginia sheriff.
In most of its contracts around the country, including in Monterey and Santa Cruz counties, it is Wellpath’s responsibility to cover the costs when inmates are seen by specialists or receive emergency care outside the jail, though some costs are reimbursable from insurers.
The federal monitoring of the Monterey County Jail in Salinas is known as the Hernandez settlement, named for one of original plaintiffs in a sweeping class-action suit filed a decade ago by the American Civil Liberties Union and a prominent San Francisco law firm, Rosen Bien Galvan & Grunfeld, which has had great success in civil rights cases involving jails and prisons.
The federal case against Monterey County and Wellpath associate California Forensics Medical Group resulted in a 2015 settlement that requires the county to improve all forms of medical care in the jail and to start adequately staffing the facility, which it has struggled to accomplish because it can be hard to hire deputies to work in jails.
The voluminous case file documents numerous examples of ailing inmates who should have been referred elsewhere, including some who died waiting. It contains numerous allegations of substandard care amounting to cruel punishment for inmates awaiting trial or serving sentence or crimes that didn’t warrant time in state prisons. Unlike the general public, incarcerated men and women have a constitutional right to adequate health care.
The case file in federal court is heavily redacted (See Secrecy in the court), partly to protect the privacy of inmates. Even so, it repeatedly demonstrates times when severely disturbed inmates were locked in bare, totally unfurnished cells for long hours. It shows how clearly suicidal men went to elaborate means to kill themselves after psychiatric care was declined and correctional officers failed to perform required welfare checks; how numerous inmates dependent on prescribed psychotropic medications had them taken away when they entered the jail; how those inmates were told they could get their anxiety or depression meds back only after blood tests showed them to be clean and sober for 90 days. That practice, once prevalent in jails, has largely been discarded nationwide.
Most of the cited cases occurred during the administration of Steve Bernal. His terms as sheriff ended late last year after Tina Nieto was elected to replace him.
Despite a string of four deaths in the Salinas facility after she took office, conditions appear to have generally improved under Nieto. She says she is “laser focused” on improving care to the point that the federal bench would determine the jail no longer needs the oversight of medical doctors, dentists, psychiatrists and others who have been regularly inspecting the jail for nearly eight years as part of the federal monitoring.
Lawyers for the inmates say the keys to improved care are adequate staffing and a “good attitude.” Lori Rifkin, an Oakland civil rights lawyer who has successfully sued Monterey County five times over jail deaths, says she was hopeful conditions would improve under Bernal’s predecessor, Scott Miller, and was disappointed when Bernal came into office. She said Bernal and his top advisers had a cavalier, if not hostile attitude toward inmates, and let it trickle down the chain of command. She said she stopped taking Monterey County cases because of that.
The Hernandez case file doesn’t say whether the actions of correctional officers or the medical staff caused or contributed to any of the deaths under Nieto’s watch, though it is known detectives are trying to determine whether the death of inmate Jimmy Hall on April 7 was caused by Wellpath’s failure to provide a CPAP machine like he had been using in another facility. A fellow inmate provided this account.
Nieto says improving care is clearly the right thing to do even though she believes the cost of complying with the federal mandates makes it impossible to increase the number of patrol deputies or launch new crime-prevention programs. Consultant reports dating to 2007 said sheriffs had consistently complained about the difficulty of keeping both the jail and the patrol division properly staffed.
Nieto says that because the county budget is shrinking, several needed improvements to the Sheriff’s Office overall performance are on hold until the federal requirements go away.
Paying the federal monitors and attorney fees for the inmates costs Nieto’s department millions of dollars each year, including numerous indirect costs. Keeping the jail staff large enough to satisfy the court requires a remarkable 300 hours of overtime each day.
As of a month ago, the Sheriff’s Office had 49 deputy positions vacant. The number has gotten smaller since then.
State corrections officials say as many as half of the inmates in California jails and prisons have serious psychiatric issues. Nieto said if she needs to start running a mental hospital, she’s fine with that.
“Just give me the resources,” she said.
Bernal, the previous sheriff, attempted at times to make the jail staff appear larger by having deputies not working in the facility turn in timecards saying they were. That occurred repeatedly, according to several deputies, and most flagrantly in 2019 when Bernal used county money to pay costs of a state sheriff’s convention he was hosting. Deputies involved in convention security and transportation were told to claim they had been working overtime in the jail, padding the roster. A Voices report on the illegal convention spending led to a formal investigation and a Board of Supervisors censure of Bernal, who then decided not to seek a third term.
Nieto says she hopes to have the federal oversight lifted within three years. That’s a tough task considering it will remain until jail officials can demonstrate compliance in a long list of areas, such as providing disabled inmates with reasonable access to exercise areas, speeding the process to transport prisoners to outside health providers and maintaining a full staff in the jail.
In a recent report to the county Board of Supervisors, Nieto said the jail is about 35 percent compliant with the court’s mandates.
Calls to Wellpath officials weren’t returned. But in preparation for the Aug. 24 hearing before federal Judge Beth Labson Freeman, Wellpath has filed papers saying it is doing the best it can despite the difficulty of keeping its jail operations fully staffed and by a jail population that became much more challenging after the state began trimming the state prison population. The company says doctors and nurses don’t like working in jails. In that case, lawyers for the plaintiffs argue, the company needs to pay more. The company has had years to improve, they say, and the results of very recent care are not reassuring. They wrote:
“In April 2023, a patient was discharged in acute renal failure and close to death because of inadequate care at the jail … . That same month, Wellpath failed to appropriately treat a patient’s profound hypothyroidism, which resulted in a near coma and an 18-day hospital stay. Despite the patient’s suicidal ideation and covering himself in feces, staff failed to refer him to a physician or psychiatrist … .
“On May 11, 2023, a patient suffering a psychiatric crisis was made to wait for emergency medication because Wellpath had no on-site psychiatrist and could not reach one by phone. A patient booked on May 16, 2023, and housed in the infirmary was forced to lie in his own excrement and rely on another patient to help him attend to his activities of daily life.”
Wellpath’s latest response to the motion for sanctions is that it has recently hired four key staff members. The other side replied that the hires aren’t assigned full time to the jail and lack the ability to improve care noticeably. One of the new hires is working on an interim basis, the plaintiffs’ lawyers noted, and the number of recent hires is not nearly enough to make meaningful changes.
Despite Wellpath’s lackluster performance here and elsewhere, the county signed a new contract with the company last November, locking jail officials into three more years of a difficult relationship. That was done when Sheriff Steve Bernal’s administration was ending and Nieto was being elected as his replacement.
Wellpath’s most recent contract allows the Sheriff’s Office to fine the company for failure to meet its staffing requirements, which it seldom has, or if it fails to obtain accreditation from the National Commission on Inmate Health Care within nine months. Its jail operations in San Luis Obispo and Fresno counties are accredited.
Undersheriff Keith Boyd said his office hasn’t issued any fines so far but that a new compliance division will start monitoring the company’s performance in those areas and others next month.
A third new contract provision provides insight into Wellpath response times. It allows the county to start fining the company $10,000 each month it fails to triage — properly route — more than 15 sick-call requests from inmates within 24 hours. That indicates that some inmates requesting medical attention are often put off for more than a day even though Wellpath maintains a nursing station within the jail.
Now that it is housing more and more convicted inmates who once would have been sent to state prison, the Monterey County Jail holds an average of just under 900 men and women each day. Technically it has a capacity of 1,400, but keeping rival gang members separated, accommodating special-needs inmates and other classification issues prevent it from running at 100%.
Despite expending considerable resources, the county has failed to provide a reasonable level of safety in the jail, the inmates’ attorneys contend.
“For more than seven and a half years, Wellpath has defied its court-ordered obligations and provided systematically inadequate care to people incarcerated at the Monterey County Jail,” plaintiffs’ attorney Cara Trapani said in a recent court filing.
“The result of Wellpath’s persistent noncompliance with this court’s orders and its own remedial plan is a death rate at the jail more than twice the national average and a suicide rate more than three times the average for California jails,” Trapani added.
The Monterey County Counsel’s Office disputes the lawyer’s mortality statistics (See the county’s response here) but the methodology and rankings appear solid, jail administrators in other counties told Voices.
About Wellpath’s failings, Trapani added, “The resulting deficiencies in medical, mental health and dental care cause daily pain and suffering, including serious medical and dental complications, untreated chronic illnesses, suicide attempts and deaths. This court must intervene and order Wellpath to finally meet its remedial obligations.”
Though most doctors’ reports are redacted or under seal (See Secrecy in the court), a thorough search can turn up examples of seemingly horrendous care. For example, several examples of substandard psychiatric care are contained in an affidavit prepared by a prominent psychiatrist in the early days of the federal monitoring.
Dr. Pablo Stewart is a senior professor at UC San Francisco Medical School who specializes in mental health care in jails and prisons. He has testified in numerous wrongful death trials and has served as an expert witness as part of court monitoring of federal prisons, county jails and one of the state’s principal mental health lockups in Vacaville.
Stewart wrote that the Monterey County Jail early after the federal monitoring started was almost exclusively using “telepsychiatry,” remote care provided by off-site psychiatrists and had no policy on when an inmate would be deemed eligible for in-person treatment.
“Running a 1,000-person jail without any on-site psychiatric services is dangerous,” Stewart said. And, he argued, even the remote care was available only on weekday mornings. An inmate in crisis might receive no care unless the jail staff consented to a transfer to the county’s Natividad Medical Center or other facilities.
Stewart went on to detail large lapses in care for three deeply troubled inmates, who, like many others, sometimes spent hours or days in special cells without bedding, toilets or other furnishings. (Click here to see his graphic description in an affidavit.)
Lawyers for the inmates persuaded a federal judge to order an end to telepsychiatry in 2018 and to expand the hours a psychiatrist would be assigned to the jail.
Sheriff Nieto says a major prong of her approach to satisfying the federal court was to create a team to handle the various Hernandez mandates. Bernal assigned just one sergeant in the jail to handle the piles of paperwork and remedial chores created by the court case. Nieto’s Hernandez team includes a chief deputy, a captain (Joe Moses, her opponent in last year’s sheriff’s race), a commander and a sergeant, with another sergeant to be added in the fall. Annual cost for the team is more than $500,000.
Voices asked Nieto what would happen if the department’s budget, approved by the Board of Supervisors, continues to lag behind what is needed to eventually meet the Hernandez mandates from the bench. She assigned Undersheriff Boyd to respond:
“Since January 1 the Sheriff’s Office has hired numerous deputy sheriffs and we continue to recruit and hire at a robust rate. We have implemented changes, without sacrificing POST standards, in the hiring process to reduce the time it takes to bring a new employee on board the organization. In the Fiscal Year 24 budget we were able to add a Sheriff’s Commander and a Sheriff’s Sergeant as well get funding restored for 5 previously defunded deputy sheriffs. All 7 of this position will go directly to the jail. Currently the Sheriff’s Office has 29 sworn vacancies when you include the recent 7 added through the FY24 budget process and 13 of those vacancies are in the Jail. In an effort to mitigate the overtime related to filling vacancies in the Jail we recently transferred 5 deputy sheriffs on a temporary basis from the Patrol Division to the Jail to support jail operations. This temporary transfer allowed the organization to increase our jail staffing numbers while we work to recruit and hire more staff.
“At this point, due the number of current vacancies, it is too early to tell if it will be impossible to meet the court staffing mandate in the jail. We feel confident we can fill a significant portion, if not all, of the deputy sheriff vacancies by the end of the year. Once that projected staff completes their training then thereafter, we can conduct a thorough analysis of our staffing capabilities in relation to the court mandated staffing requirements.
“In the end, the Sheriff’s Office is committed to gaining substantial compliance with respect to the terms and conditions of the Hernandez settlement. If our future analysis indicates a need for additional staff, then we would go to the Board of Supervisors to seek the funding necessary to add the needed staffing, but said funding would be contingent on approval by the Board of Supervisors. It is important to remember though that the Board of Supervisors is the signatory to the Hernandez settlement and not the Sheriff’s Office. The Sheriff’s Office operates the jail, bound by the terms of the agreement, and is committed to ending the settlement, but the Board of Supervisors is responsible for funding what is needed to end the settlement. If at some point the Board of Supervisors were to not provide the appropriate level of funding to meet the needs of the Hernandez settlement or a tiered approach to funding couldn’t be provided then the Sheriff’s Office would be faced with the hard choice as to what steps would need to be taken with existing funds and staff and then potentially reduce services elsewhere in the organization that could impact the ability to of the Sheriff’s Office to meet the expectations of the community with respect to law enforcement services such as records, civil, patrol, investigations, SWAT, EOD, SAR, DIVE, AERO, and such.
Here’s Nieto again.
“We’re holding Wellpath accountable to a degree they hadn’t been held in the past,” she said. In a recent interview, she said the health care needs to improve though she resents the fact that cases like Hernandez represent a solid revenue source for lawyers representing the inmates. The county money that now goes to the lawyers could help solve all sorts of issues in the jail, she suggested.
She also complained that in some cases, families that cut connections to terribly troubled relatives because of their long-term behavior file wrongful death lawsuits after their jailhouse deaths claiming great emotional losses.
Calculating the total payments to the various lawyers involved is a challenge because of the volume of paperwork and the blackout of so much of it. In 2016, shortly after the litigation began, the federal court awarded the plaintiffs’ attorneys more than $4 million, paid by the county and Wellpath.
“I have a belief that the lawyers are in it for the money, it is a business and they want to keep this going,” the sheriff said. “That might not be in the interest of the inmates.”
Sheriff’s departments and other public entities around the country generally hire Wellpath through a competitive bidding process, but the number of eligible bidders has been shrinking because of consolidation in the industry, which is now largely controlled by private equity firms. Other providers are likely to be available when the current contract expires in 2026, but Nieto and other county officials are contemplating a logical alternative: making use of the county-owned Natividad Medical Center near the jail and clinicians within the county Health Department’s clinic system. It is an obvious option but fraught with bureaucratic, political and financial issues.
Nieto has discussed the idea with Natividad officials, and the Board of Supervisors has informally indicated support.
Michael Fenne of the Private Equity Stakeholder Project, the hedge fund watchdog group, says only a few counties or states nationwide have been able to get away from for-profit providers such as Wellpath. Some have discarded Wellpath and gone with competing firms and some have done the reverse.
One Indiana county used its own medical staff to handle its jail for a few years before converting to Wellpath, increasing costs by about $300,000 annually. Frenne said the city of New Orleans recently contracted with Wellpath despite receiving a competing bid from Louisiana State University.
In Missouri, one county handled its own jail health care under contract with a for-profit company, but pulled out of the arrangement when the company fell short on its payments.
“Whichever company runs a jail’s health care, the profit motive typically leads to cost-cutting measures, quality concerns and patient harm,” said Frenne.
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