Health clinic hours reduced 50% at some Texas prison units because of budget cuts; Ogden says prison health budget underfunded 15%

Clinic hours at some Texas prison units were cut by up to 50% in the wake of recent budget cuts, Texas Tech officials told state senators on Monday.

The Texas Senate Finance Committee met yesterday to address correctional managed health care. Go here to watch the hearing online. The only MSM coverage appears to be from Chris Tomlinson at AP. The money quote from that story: "Dr. Denise Deshields, the health director of Texas Tech University's prison health care system, said the new cut could lead to an unconstitutionally low level of care. 'I don't know how we would possibly handle an additional 10 percent reduction in appropriations. We are really cut down to the bone as it is,' she said."

Further, "The vice president for offender health services at the University of Texas Medical Branch, Dr. Owen Murray, said that because of staffing cuts guards are now expected to help make medical decisions that nurses and doctors once made."

Grits listened to much of the hearing this morning. Here are a few tidbits the abbreviated AP story didn't pick up:

Chairman Steve Ogden openly prefaced the hearing by declaring, "We did not last session appropriate all the money that we believed was going to be necessary to pay for correctional managed health care. There was a great deal of concern at UTMB that we might run short and they'd be left holding the bag." Grits readers knew that but I hadn't heard an elected official says so that openly before now. (One supposes it helps that Sen. Ogden is retiring and won't be back next year.)

Ogden emphasized that there's a contract in place with UTMB through next session, but not through the end of the biennium. Right now it looks like the state may be short by $58 million, he said, which would have to be paid for with an emergency appropriations bill at the beginning of the 2013 session. There's "no crisis at the moment," he stressed.

In fact, Ogden said that when the Lege adjourned, budget writers thought they'd shorted prison healthcare by "maybe $120 million" (Grits' calculation was $126.5 million), so if it's only $58 million, in some ways it's "good news," Ogden suggested pluckily (particularly if you like your good news written in red budget ink).
 Sen. John Whitmire wanted to know, if TDCJ now will be $58 million short instead of $120 million, how was the money saved? He worried that the state may have saved money by reducing services to the point that we have an unconstitutional system, and if so that it might cost more in the long run.

Whitmire scoffed that UT comes up to him and says they're going to "walk it" (the contract"), their board says they're going to "walk it," but when the media asks him about it he replies, "Naw, they're not gong to walk it ... we have  nothing to replace them with." At this point, though, negotiations are ongoing and the issue is unresolved. Senators Whitmire, Tommy Williams and Robert Duncan have all been closely involved with UTMB negotiations, said Sen. Duncan in his comments. (Texas Tech, it should be mentioned, is fine with continuing under their current contract: UTMB is the only one threatening to quit.)

LBB staffer John Newton gave a rather dry, just-the-facts-ma'am, presentation. Sen. Royce West brought up a big sources of savings for TDCJ prison healthcare that no private provider could replicate: In particular, UTMB has access to so-called 340B pricing on its pharmacy services, which is pricing only available to institutions that operate a hospital eligible for "disproportionate share" funding for provision of indigent services. Indeed, even Texas Tech is not eligible for 340B pricing, the committee was later told. (It's one of the reasons Grits has been skeptical at claims privatization might lead to significant savings.)

For a variety of reasons, healthcare for inmates is far cheaper than for state employees or under private insurance, LBB staff told the committee. Sen. Whitmire pointed out that part of the reason it's cheaper is they deliver fewer services. For example, "at 7 o'clock, [prison doctors] go home, to save money ...  so if you get sick at 10 o'clock in the free world, you get health care. In prison, you wait" till the next morning, "or don't get it."

Senators seemed amazed that California's cost per day was four times Texas', according to data provided by LBB, but they did not get good answers on what's happening in California vis a vis federal litigation over healthcare, so I should point out that it's a question Grits has addressed in some detail in the past. It's also worth noting California's baseline costs are higher: Prison guards make around twice what ours do, for example.

Sen. Duncan asked several times if Texas is providing a constitutional level of care, but he didn't press for a preferred answer. He pointed out that Texas had been under a court order in the past, and said he wanted to know if the state was still providing a constitutional level of care now that the state is out from under federal oversight, implying the state risked additional federal intervention and by extension, California-style cost increases. California has three state-run prison hospitals, LBB noted, which were expanded recently to comply with federal court orders, as well as relationships with numerous contractors for health care services.

The idea of expanding Medicaid eligibility to cover certain prisoner hospital stays was discussed, but dismissed. Currently most of TDCJ population would not be eligible for Medicaid, even if they weren't incarcerated, except for pregnant women and certain blind and disabled inmates, said LBB's Newton. If the state chose to expand Medicaid under Obamacare, however, most prisoners would be eligible in FY 2014, or at least they would be once they're back in the free world. And even while in prison, Medicaid could pay for some of their hospital services. However, LBB's Newton gave the best argument I've heard against extending Medicaid to cover prisoner hospital stays: That approach may be more appropriate, he said, in a fee for service setting than under a managed-care contract, undermining incentives for providers to limit hospital costs. (The point soon became moot as elsewhere yesterday Gov. Rick  Perry came out against expanding Medicaid at all.)

Dr. Cynthia Jumper (associate dean, Tech) touted the benefits of telemedicine in reducing travel costs and access to specialists in facilities like Dalhart. Even so, she said, budget cuts last year resulted in reduced clinic operating hours at clinics managed by Texas Tech: Nine units operated by Tech cut operating hours by 50%, she said, and 11 others cut operating hours by 25%. (Emphasis added.) Tech already cut 77.39 FTEs (full-time equivalent staff positions) as a result of the 2011 budget cuts.

Texas Tech's budget was reduced by $25 million over this session, noted Sen. Odgen, asking what they would do with that money if they got it back. Jumper disappointingly answered, hire more staff and pay existing staff more money. A better answer (which Sen. Deuell tried unsuccessfully to hand them) would have been to fill staff vacancies and expand clinic hours to past levels, thus reducing emergency room costs. After all, inmate patients go to local emergency rooms if they get sick after hours, according to testimony, and the state gets a bill for those services.

Other reduced services under the Tech system included closed ICU beds at the Montford Unit and canceled after-hours services for certain special-needs inmates. Tech officials also testified as to the difficulty of getting hospitals to agree to Medicare rates because of extra security costs. Some providers have dropped out, the committee was told.

Tech has a 17% vacancy among professional staff and already find it "difficult to recruit, difficult to retain." In particular, pay for nurses is already below market. Tech officials said they did not think they could provide constitutional levels of care if they took another 10% cut.

UTMB was represented at the meeting by Dr. David Calendar and Owen Murray, VP of Offender Health Services. UTMB reduced its number of employees by 165 FTEs under new staffing plan negotiated with TDCJ, Dr. Murray told the committee. They also cut hours at on-site clinics - in particular it was mentioned that 14 UTMB-run clinics went to eight hours per day from 12 hours or more - but not as radically as at some Tech-run units. Instead, cuts on the UTMB side were mostly focused in management and mental health services, the committee was told. In addition, cuts to facility support personnel have resulted in noticeable declines in productivity. Murray said there were probably some "critical staffing needs" where the agency "cut too deep." When the Correctional Managed Healthcare Committee was created, Dr. Murray pointed out, clinics were open 24/7 at all units.

Primarily, savings from last year's budget cuts occurred because of reductions in personnel and reduction of services, said UTMB officials. There were also some savings in reduced emergency room costs because hospitals including UTMB must now accept Medicare rates instead of the amount they charge insurance companies.

Many of Senators Ogden and Dan Patrick's questions seemed aimed at prodding respondents to rebut the implications of Sen. Duncan's questioning to say affirmatively that the state provided constitutional levels of care. Ironically, the go-to answer they solicited from several officials (besides buck passing) was that Texas' level of care met American Correctional Association accreditation standards. But the state chooses not to follow ACA standards when it comes to, for example, heat in prison units, according to a report over the weekend. The Statesman's Mike Ward cited "American Correctional Association standards that stipulate temperature and humidity inside prisons be kept at 'acceptable levels.' A state law mandates county jails be kept between 65 and 85 degrees, though it doesn't apply to state prisons," Ward reported.

I'm not a lawyer, but if the state is going to claim compliance with ACA standards means their prison health care is constitutional, they may find themselves hoisted on their own petard if and when litigation goes forward regarding heat-related deaths at units that don't meet ACA standards. Grits reported in June on oral arguments at the 5th Circuit on whether federal litigation can go forward to decide if excessive heat violates civil rights.

In any event, Murray told Sen. Dan Patrick that reducing clinic hours put non-medical personnel like guards in the position of making medical decisions. When medical personnel aren't there, the state incurs costs at local emergency rooms they wouldn't otherwise have to pay, resulting in more costly, excessive and inappropriate care overall.

The private vendors hoping to take over TDCJ health services said they would likely hire on most existing employees but cut their benefits, especially pension and retirement services.

Brad Livingston, TDCJ executive director, seemed hopeful if not sanguine that UTMB might continue to contract for services "in the long run." If prison health is privatized, he said, the Lege should plan to pay a significant amount for compliance monitoring in addition to the contract costs and demand strict compliance with staffing minimums at the units, particularly those in more remote areas.

Sen. Ogden got LBB to acknowledge that quite bit of state spending on inmate health care and prisons generally - particularly employee benefits - are  actually outside of TDCJ's budget. (The Vera Institute of Justice recently calculated that 23% of Texas prison costs are outside TDCJ's budget.) He asked for LBB to come up with a total calculation going forward that includes all those off-budget items, as well as UTMB's overruns, which will be interesting to see later on. Ogden offered his own opinion that, when such an analysis has been performed, the actual cost of prison healthcare will be about 15% above what the state has appropriated. I'll betcha he's pretty darn close.

The question is, knowing that, how much longer can they kick the can down the road? Texas' costs per prisoner on healthcare aren't getting much lower and, if Ogden's right, they are understated. The only way in the near term to reduce prison health costs further is to 1) reduce the number of prisoners or 2) reduce services, possibly to the point of risking California-style litigation, where federal courts ordered tens of thousands of prisoners released. Better to choose to reduce inmate numbers thoughtfully on the front end than to chronically underfund health care and hope different judges on SCOTUS will decide some future Texas prison health care case.