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Massachusetts Law Review

Massachusetts Prison Mental Health Services: History, Policy and Recommendations

Daniell Drissel
Danielle Drissel, of the Boston University School of Law class of 2003, will be an associate in the Washington, D.C. office of Hogan & Hartson L.L.P. starting this fall.
People who commit criminal offenses are often marginalized. The general population has expressed little interest in ensuring or financing their welfare. As a result, the needs of the incarcerated are often unmet. Similarly, our society stigmatizes individuals with mental illness. Historically, those with significant mental health needs were civilly committed to government-run sanitariums. In the 1970s, efforts were undertaken to "deinstitutionalize" the mentally ill and close state-run facilities in favor of community-based treatment settings.1 Unfortunately, deinstitutionalization was accompanied by a dramatic increase in the number of mentally ill individuals in the criminal justice system.2

In July 1999, the U.S. Department of Justice (DOJ) released a comprehensive survey on the mental health needs of the incarcerated.3 Approximately 16 percent of state prison inmates were identified as mentally ill based on their self-reporting either a mental condition or an overnight stay in a mental hospital.4 About four in 10 mentally ill inmates reported they had not received mental health treatment since admission to prison.5 While 23 percent of white inmates were identified as mentally ill, only 13.5 percent of black inmates and 11 percent of Hispanic prisoners were so identified.6 Mentally ill inmates were more likely than other inmates to be under the influence of alcohol or drugs at the time of their offenses.7 Furthermore, mentally ill inmates were more likely than other inmates to be charged with breaking prison rules.8

This article addresses the provision of mental health services in Massachusetts prisons.9 Part I explains the framework for understanding inmates' rights to mental health services under international covenants, the U.S. Constitution and Massachusetts law. Part II describes the history of mental health and corrections in Massachusetts. Part III describes problems in prison mental health services as documented in a comprehensive investigation by the University of Massachusetts Medical School (UMMS). Part IV details the subsequent intervention by UMMS and the factors that made this effort successful. Part V describes critical challenges still facing the prison mental health system and presents recommendations for reform.

Part I. Legal Framework for the Right to Prison Mental Health Services

International covenants, the U.S. Constitution and Massachusetts law all contain provisions concerning mental health care for incarcerated people. The three tiers of doctrine work in conjunction to establish the framework of a prisoner's right to mental health services.

International Law

The United Nations (U.N.) has developed a wide range of documents that together establish an inmate's right to mental health services. These documents address areas of human rights, including the prohibition on the abuse of prisoners and the right to health care. The specific right to treatment for mentally ill prisoners has been established through both the rights of prisoners and the rights of the mentally ill.

General protection for the incarcerated is set forth in the Universal Declaration of Human Rights (UDHR), which establishes that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."10 The International Covenant on Civil and Political Rights (ICCPR) reiterates this fundamental tenet of human rights and expounds further on the rights of the incarcerated. 11 Specifically, Article 10 of the ICCPR states, "[a]ll persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person." 12 Additionally, it sets forth reformation and social rehabilitation as the essential aims of the penitentiary system. 13 The article creates specific obligations to be met by the state parties to the covenant and calls for the application of U.N. standards for the treatment of all prisoners.14

Similarly, the right to health is recognized in the UDHR statement that "[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including . . . medical care and necessary social services. . . ."15 The International Covenant on Economic, Social and Cultural Rights (ICESCR) further emphasizes the right to the "highest attainable standard of physical and mental health."16 Article 12 calls on state parties to take steps to ensure the full realization of this right, including the "creation of conditions which would assure to all medical service and medical attention in the event of sickness."17 This includes access to appropriate mental health treatment and respect for the needs of prisoners.18

The intersection between the rights of prisoners and the right to mental health, suggested by the U.N.'s bedrock documents, is expressly stated by the Economic and Social Council (ESC) in the Standard Minimum Rules for the Treatment of Prisoners.19 The ESC guidelines for the essential elements of prison care include the requirements that "[a]t every institution there shall be available the services of at least one qualified medical officer who should have some knowledge of psychiatry" and that "medical services. . . . shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality."20 These services shall include screening on admission and periodically throughout incarceration,21 timely care,22 reporting on any adverse health impact of imprisonment,23 sufficient staffing,24 and interpreter services where necessary.25 Prisoners under sentence require medical services to detect and treat mental illness.26 To that end, psychiatric services require individualized treatment27 and individualized medical documentation.28 Provisions for mentally ill prisoners include psychiatric treatment for all who need such care29 and the continuation of psychiatric care after release.30 Subsequent U.N. documents have reaffirmed these protections and further asserted that care should be of the same quality and standard as that in the community.31

Likewise, the U.N. General Assembly's guiding document on the rights of those with mental illness, "The Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care," expressly addresses the needs of criminal offenders.32 Principle 20 calls for the incarcerated to receive the best available mental health care, limited only as necessary under the circumstances.33 The principle asserts that any limits on mental health care for criminal offenders should not prejudice their rights under the UNDR, ICCPR and ICESCR.34

The United States is not a party to many of the conventions memorializing these rights. However, the uniformity with which the right to mental health care is asserted concomitant with the rights of prisoners suggests that mental health care for prisoners has attained the status of international customary law. 35 As such, the right under international law to inmate mental health care applies to prisoners in the United States.

U.S. Constitutional Law

The Eighth Amendment to the U.S. Constitution guarantees prisoners the right to medical care.36 This right was first described in Estelle v. Gamble, in which the Supreme Court held that "deliberate indifference to serious medical needs of prisoners" is proscribed by the Eighth Amendment.37 Although the Estelle Court did not expressly address mental illness, courts have uniformly found that there is "no underlying distinction between the right to medical care for physical ills and its psychological or psychiatric counterpart."38 Bowring v. Godwin established that prisoners with mental illness have a constitutional right to treatment

if a physician or other health care provider, exercising ordinary skill and care at the time of observation, concludes with reasonable medical certainty (1) that the prisoner's symptoms evidence a serious disease or injury; (2) that such disease or injury is curable or may be substantially alleviated; and (3) that the potential for harm to the prisoner by reason of delay or the denial of care would be substantial.39

The Bowring Court limited the right to treatment to instances where care was necessary and could be provided on a reasonable cost and time basis.40 This analytical model has been generally adopted by courts reviewing inmate claims regarding the right to mental health services.41 Thus, the threshold for stating a constitutional claim for violation of the right to mental health treatment under the Eighth Amendment is very high, requiring prisoners to show both that their mental health needs were "serious"42 and that the failure to treat constituted "deliberate indifference."43 Furthermore, the right to treatment is to be interpreted in light of "the evolving standards of decency that mark the progress of a maturing society."44

In the past 20 years, courts have moved beyond inquiring merely whether any mental health treatment was provided to the more complex question of whether sufficient treatment was provided.45 The basic framework for the constitutional minimum in acceptable treatment was set forth in Ruiz v. Estelle and includes:

1) a systematic screening and evaluation procedure;

2) treatment which entails more than segregation and supervision;

3) treatment involving a sufficient number of mental health professionals to provide adequate care to all prisoners suffering from severe mental disorders;

4) adequate and confidential mental health records;

5) a ban on prescribing potentially dangerous medications without adequate monitoring; and

6) identification, treatment, and supervision of suicidal inmates.46

Subsequent decisions have built on this framework.

Today, the standards for a constitutionally adequate mental health system far exceed the fundamental elements set forth in Ruiz. 47 Mental health care for prisoners must also include adequate staff training, input from mental health staff on housing decisions and quality assurance programs.48 Prisons must have a sufficient number and multiple levels of designated mental health facilities and effective mechanisms for prisoners to request treatment.49 Prisoners with mental illness may not be placed in segregation50 without sufficient mental health treatment, nor can security personnel override treatment decisions.51 The right to treatment requires a sufficient number of multi-lingual mental health staff to effectively screen and treat non-English speaking inmates.52 Furthermore, upon discharge a prisoner who requires medication must be given a sufficient supply for the period of time reasonably necessary for him to consult a doctor and obtain a new supply after release.53 Moreover, it is firmly established that lack of funding is not a defense to liability for deliberate indifference to inmates' serious medical care needs.54

Massachusetts Declaration of Rights and General Laws

Article 26 of the Massachusetts Declaration of Rights prohibits the infliction of cruel and unusual punishments.55 The Supreme Judicial Court has read Article 26 to be at least as broad as the Eighth Amendment to the federal Constitution.56 Since Article 26 bars punishments that violate "contemporary standards of decency," the court looks to state statutes and regulations, based on the presumption that they reflect the public attitude as to what those standards are.57

Under the Massachusetts statute, the Commissioner of the Department of Correction (DOC) is authorized to establish and enforce standards, rules and regulations for all state correctional facilities, and to enter into contracts to render services to committed offenders and to provide training for correctional officers. 58 The Commissioner of Correction's statutory duties do not include a duty to provide health services.59 Superintendents of prisons, however, are statutorily required to ensure that physicians conduct examinations of inmates.60 Regulation of the time and manner of the exams and the content and use of inmate medical records are statutory obligations of the Department of Public Health.61 The only statutory provision expressly calling for mental health care for inmates requires that inmates in segregation units receive periodic medical and psychiatric exams and treatment under the supervision of the Department of Mental Health (DMH).62 DMH is required to defer control and supervision of mental health treatment when supervision is statutorily granted to another entity.63

Part II. The History of the Incarcerated Mentally Ill in Massachusetts

The treatment of people with mental illness in the Massachusetts correctional system has been a source of periodic concern and reform for almost 200 years. In the early days of reform, the focus was on moving the mentally ill from correctional institutions to treatment facilities. Louis Dwight of the Boston Prison Discipline Society publicized the neglect of mentally ill inmates and successfully campaigned for the creation of the State Lunatic Asylum at Worcester, which opened in 1833.64 Dorothea Dix built on these early efforts to promote public psychiatric hospitals, issuing a highly critical report to the state legislature on the conditions in Massachusetts prisons and almshouses.65 The asylum-building movement dramatically reduced the number of seriously mentally ill confined to correctional institutions.66

The creation of psychiatric hospitals did not ensure that those with mental illness were receiving necessary care and treatment, however, especially if they were alleged to have engaged in criminal activity. Individuals who were charged with or convicted of crimes and seen as mentally ill and potentially dangerous were confined to Bridgewater State Hospital, run by DOC.67 In 1967, the film Titicut Follies documented gross abuse and mistreatment at this facility.68 Similar cruelties were documented a decade later in Screw: a Guard's View to Bridgewater State Hospital.69 While reforms have been implemented, the quality of care at Bridgewater is still a subject of discussion among mental health advocates.70

Attempts to address the needs of inmates who did not require inpatient psychiatric care were slower to develop. In the 1950s, DMH began providing rudimentary mental health services in some state correctional facilities, but there was no emergency care or crisis intervention.71 Within two decades, DMH was phasing out this program.72 In 1971, the Medical Advisory Committee on State Prisons, led by Morton Madoff, developed a report that established basic health care standards but resulted in little substantive change.73

Litigation proved far more successful in effecting change in the quality of prison health care. In 1977, the Prisoners' Rights Project filed a class action lawsuit alleging a systematic failure to provide health services, including mental health services, at the state prison in Walpole.74 Within two years, the state entered into a contract with McLean Hospital to establish a comprehensive emergency mental health care system, called the Prison Mental Health Program (PMHP).75 PMHP was responsible for medication, crisis intervention and hospitalization of prisoners with mental illness.76 DOC also created a division called Psychological Services to provide therapy.77 Under a consent decree the federal courts monitored the sufficiency of mental health services at Walpole until 1988.78

The following year, the Governor's Special Advisory Panel on Forensic Mental Health issued recommendations for systematizing and coordinating mental health services in correctional facilities.79 The panel recommended the creation of at least three specialized treatment centers, which would each provide six to 10 beds for crisis care, 45 to 60 beds for longer-term residential care and an outpatient clinic.80 It also recommended more coordinated treatment planning between PMHP and Psychological Services staff, greater communication between mental health and correctional staff, and better documentation of treatment plans.81 Before any of these recommendations could be implemented, a changing political climate led to a shift in priorities.

Beginning in 1991, cost became a driving concern in inmate mental health care. DOC fired 23 prison mental health crisis workers on the PMHP staff at Walpole.82 A few months later, all prison health services were privatized.83 The contract was awarded to Emergency Medical Services Associates (EMSA), a private health management company in Florida, and was estimated to save the state $4 million in the first year, with significant savings coming from reduced labor costs and legal expenses.84 In 1994, amid allegations of inmate neglect and conflicts of interest, EMSA lost the contract for prisoner health services to Missouri-based Correctional Medical Services (CMS).85 By 1996, the quality of prison mental health care was in question, with only the most acutely ill inmates receiving necessary services.

Part III. Crisis Point and Call for Change

The suicide of inmate John Salvi in 1996 provided the impetus necessary to address the under-service of inmate mental health needs. Salvi was convicted in the shooting deaths of two employees at Boston-area abortion clinics.86 During highly publicized competency hearings, the state conceded that Salvi had a mental disorder.87 Yet after his conviction, Salvi did not receive psychiatric care.88 Extrapolating from DOC's failure to treat an inmate with obvious mental health needs, the media questioned the competence of the prison mental health system.89 A blue-ribbon panel of correctional mental health experts from the University of Massachusetts Medical School (UMMS) was appointed to investigate the sufficiency of Salvi's mental health care.90 The resulting report (Salvi report) was a critical assessment of prison mental health services and provided the foundation for system-wide change.91

The evaluators used the professional standards established by the American Psychiatric Association92 and the National Commission on Correctional Health Care93 as guidelines to assess the sufficiency of DOC policies and procedures. The report was highly complimentary of DOC's written policies. The limited criticisms of the policies dealt with the timing and frequency of required evaluations, the clarity of suicide prevention policies and the need for a policy requiring consultation with a psychiatrist prior to closing mental health cases.94

The greatest criticism of the prison mental health system was insufficient staffing. The report found that that the number of psychiatrists was less than half the absolute minimum needed and that the numbers of psychologists and social workers were also inadequate.95 The staffing shortfalls suggested that inmates with serious mental illness were not receiving psychiatric care.96 After initial screening when entering prison, the threshold for referring inmates for treatment was too high, with only those who engaged in significant disruptive behavior being identified as candidates for treatment.97 The problem was worsened by the failure to provide correctional staff with sufficient training to identify and refer inmates in need of mental health services.98 The lack of communication among mental health personnel and between mental health personnel and other staff prevented individual incidents from being collected and examined in order to develop adequate diagnoses and treatment plans.99 These criticisms were accompanied by 25 specific recommendations for change, as well as supplemental suggestions.

The Salvi report recommendations addressed many components of the mental health system, including department policies, information gathering, information sharing, training and referral, staffing, discipline, treatment modalities and quality assurance/quality improvement. While the report was generally favorable in its assessment of DOC policies, it recommended an overhaul of the formal departmental policy dealing specifically with mental health and suggested other changes to increase the level of care.100 With regard to information gathering, it recommended that screeners and evaluators be trained to inquire about mental health concerns that existed prior to incarceration.101 With regard to information sharing, the report recommended the implementation of policies to promote the fullest possible communication between correctional officers and mental health staff regarding inmate mental health needs.102 It also recommended that the behavioral threshold for correctional staff to refer an inmate for mental health services be significantly lowered and that correctional staff receive greater mental health training.103 With regard to mental health staffing, the report recommended doubling the number of psychiatrists, increasing the number of other health professionals, and retaining a doctoral level psychologist at each facility to provide clinical supervision.104 With regard to disciplinary concerns, the report recommended more frequent visitation and counseling for all inmates in disciplinary settings.105 With regard to treatment options, the report recommended that group psychotherapy be made available at all facilities and that DOC consider creating residential treatment units for inmates needing more intensive care.106 Finally, the report recommended the medical monitoring of inmates on psychotropic medications and the expansion of DOC quality improvement indicators to include the frequency of referrals from correctional staff and inmate suicide attempts.107 Having identified the key areas of concern and set forth concrete recommendations for improvement, the next step was to find the means to implement change. The opportunity was on the horizon.

Part IV. Implementation of Salvi Report
Recommendations

In January 1998, DOC solicited bids on a new contract for health services.108 The Salvi report had made clear that the current mental health services provider was not meeting its contractual obligations.109 When the new contract was awarded, CMS retained the general health services contract but UMMS became the new subcontractor for mental health services.110 Thus, the same group that had criticized the quality of prison mental health care assumed primary responsibility for managing the mental health program.111 UMMS immediately began to improve the quality of mental health services in DOC facilities. As detailed below, among the factors that directly contributed to the success of this effort were media pressure, legislative support, clearly articulated goals, support from CMS, support from correctional officers, independent expertise and budgetary resources.

The public interest in Salvi's suicide was clearly the precipitating factor for the intervention. The media attention highlighted the weaknesses of the DOC system and generated significant public pressure.112 Reporting continued well after the release of the Salvi report.113 The 1999 DOJ survey on the prevalence of mental illness in prisons114 kept public attention on prison mental health services.115 The continuous media coverage resulted in greater accountability and thus greater impetus for continued improvement.

A number of legislators, led by Rep. Kay Khan, have been very vocal in support of changes in prison mental health services. They introduced legislation on issues ranging from the specific elements of DOC mental health screening and discipline policies to the general need for an independent oversight committee.116 While none of this legislation has been enacted, hearings on these proposals have provided a public forum for legislators and advocates to continue a high-profile dialogue about their concerns.117

In addition to the efforts of individual legislators, the legislature paid increased attention to mental health services in the state budget. The year the Salvi report was released, the legislature increased the Correctional Health Services budget by $2 million and authorized DOC to spend the entire increase on prison mental health services.118 The following year, the legislature added language to the budget requiring the implementation of the staffing recommendations of the Salvi report.119 The acting governor, however, struck this language.120 Subsequent budgets required quarterly reports on DOC spending on mental health services and information on the implementation of the Salvi report recommendations.121 While the legislature could have played a more active role in DOC oversight,122 its continued discussion of mental health issues in the DOC budget process and in legislative hearings has required DOC to focus resources on mental health concerns.

Another factor that contributed to the success of intervention was the clear articulation of goals for reform. The Salvi report enumerated 25 specific changes that were needed in the prison mental health system.123 DOC required the implementation of these recommendations in the new contract.124 Having a yardstick against which to measure change enabled UMMS to focus its reform efforts and gave DOC the tools to evaluate improvements.

Since DOC integrated mental health with all other health services, UMMS's ability to provide mental health services required the cooperation of the general health services contractor. Several factors made CMS amenable to this partnership. CMS had historically subcontracted for mental health services, so it was already open to a work-sharing arrangement. The Salvi report plainly stated that CMS was not meeting its contractual obligations to DOC with its current subcontractor.125 Wishing to retain the DOC contract, CMS had a strong incentive to improve the quality of mental health care, but it was unclear that it could independently achieve this goal.126 By partnering with UMMS, CMS demonstrated its commitment and capacity to make such a change.

Because the DOC employees with the greatest contact with inmates are the correctional officers, no intervention could succeed without their support.127 The Salvi report stated that the correctional officers uniformly felt they did not receive sufficient training in recognizing mental illness and making decisions about referral for treatment.128 Correctional officers also emphasized the inadequacy of existing mental health services, noting that there were many mentally ill inmates who were not receiving care.129 These findings comport with studies showing that correctional officers want more information and support in dealing with mentally ill offenders.130 By meeting the intense demand for additional training and committing to a professional interaction based on continuing communication, UMMS has gained the support and cooperation of correctional officers in advancing the mental health care system.131

The external and internal support for the intervention was at least partly attributable to expertise and resources that UMMS brought to bear on the challenges of correctional mental health. As an academic medical center, UMMS provides mental health staff with the knowledge and skills necessary to ensure quality care.132 UMMS's nationally renowned psychiatry department has expertise in the specialized needs of the penal setting and a research mission that promotes the continual improvement of correctional health services.133 Furthermore, its reputation helped draw highly skilled health care professionals into the prison system.134 As a medical school, UMMS has resources to expand training opportunities, enhance the quality of services and recruit skilled mental health staff.

Furthermore, as the state's only public medical school, UMMS was created by the legislature to serve the health care needs of Massachusetts residents.135 Its unique position enabled UMMS to mobilize the financial resources necessary to implement the Salvi report recommendations. The designation of UMMS as the subcontractor for mental health services coincided with an increase in the portion of the DOC Health Services budget spent on prison mental health services.136 Additionally, UMMS augmented state funding for prison mental health with federal funding.137 These increases played an essential role in enabling change.

These factors allowed DOC, in conjunction with UMMS, to systematically implement the recommendations of the Salvi report. Within six months of the report, DOC implemented the recommendations that did not require additional funding.138 UMMS estimates that the last of the Salvi report recommendations was put into place in the middle of 1999.139 As a result, more inmates are receiving mental health services.140 Inmate concerns have shifted from complaints about an inability to access treatment to complaints about the extent and depth of treatment.141 The general consensus is that DOC, in conjunction with UMMS, dramatically improved the quality and availability of prison mental health services.142

Part V. Outstanding Challenges to Prison Mental Health Care

Recent events present new opportunities and new challenges to prison mental health care. In the spring of 2002, DOC solicited bids on a new contract for health services.143 DOC selected UMMS to replace CMS as the principal contractor beginning on Jan. 1, 2003.144 Unifying all care delivery under one provider and establishing a direct contractual relationship between UMMS and DOC creates new opportunities for collaboration on a more integrated and holistic approach to mental health services.145 In contrast, the recent economic downturn has put new constraints on the state budget.146 To cut costs, in March of 2002, DOC announced the closure of three of the state's 21 prisons.147 Projected budget shortfalls in 2003 suggest that additional spending cuts are likely.148

Within this new framework, DOC and UMMS must continue to strive for improvements in prison mental health care. As described above, the implementation of the Salvi report recommendations moved DOC significantly toward a quality mental health system for inmates. However, some areas still require specific attention, including: public accountability; linguistic and cultural barriers to treatment; disciplinary concerns; reentry assistance and continuity of care; and quality improvement. The following is a discussion of some of the challenges in each of these areas, including recommendations for reform.

Public Accountability

The partnership between UMMS and DOC has dramatically improved the quality of prison mental health care. Unfortunately, these advances are largely unknown to the public, since DOC does not actively disseminate information regarding prison practices or financing. The lack of public information undermines accountability by preventing comparisons between prison services and community standards. Furthermore, non-disclosure leaves current improvements on unstable ground by impeding public understanding about the need to invest resources into the system and how changes would alter the status quo.

DOC has significant discretion in selecting the means to provide mental health care, guided only by a general framework for constitutionally acceptable minima.149 While DOC is committed to providing the full range of appropriate mental health services, it has no express statutory mandate to do so.150 The lack of a legislative mandate makes mental health care vulnerable to budget reductions or contract modifications. Likewise, simple regulatory changes could dramatically alter the nature and scope of available mental health services. Thus, without a statutory enumeration of the requirements for inmate mental health, the continued availability of those services is uncertain.

The absence of express requirements for inmate mental health also deprives the public of information regarding what services the state believes are necessary for the prison population. International agreements and national standards call on prisons to provide a community-based standard of care.151 Without publication of the scope of prison mental health services, the public cannot assess whether prison services parallel those available in the community. To the extent that the range of services available in the community may exceed those available in prison, the absence of notice of what services the prisons provide may veil insufficiencies in the system. These concerns would be resolved by enacting the pending proposal to codify the basic components of prison mental health services into Massachusetts law. 152

The lack of disclosure regarding the financing of prison mental health services is also problematic. The influx of money was a key component of the success of earlier reforms,153 yet there is no public documentation of how much DOC spends on mental health services.154 The state budget historically included a line item for Health Services in the DOC budget but no express funding for mental health services.155 The federal funding that UMMS dedicated to prison mental health was not part of the DOC budget allocation.156 The complexity of these funding mechanisms and the failure to document the full allocation of funds to prison mental health make these services particularly susceptible to reduction.

The state budget for fiscal year 2003 exacerbates these concerns by transferring Health Services funding (along with prison administration and education expenses, among others) into a single budget line.157 In a further complication, the legislature required that the federal funds, which had gone to UMMS for use in prison mental health programming, be redirected to the state.158

These changes significantly increase the likelihood that DOC will receive insufficient funding for prison mental health services. By combining the budget allocation for Health Services with the allocations for other programming, even the crude measure of mental health spending was lost. Furthermore, unless the legislature compensates for the redirection of federal funds away from UMMS with an increase in allocation of state funds to DOC, the net result will be a major undocumented de facto reduction in mental health spending. To address these concerns, DOC and UMMS should document and publicize actual expenditures on prison mental health services from fiscal year 1998 to the present. Furthermore, the legislature should establish a line item for prison mental health services that identifies both state spending and the allocation of federal funds.

The current lack of disclosure regarding service delivery and financing significantly impedes public oversight and accountability. Furthermore, under the current system, even those segments of the public who are informed about prison mental health services do not have a mechanism to participate in the process. Thus, perspectives of many important constituencies in prison mental health care are not formally represented in policymaking or budgetary decisions. This omission could be addressed through the creation of a DOC advisory board whose membership includes the full range of inmate, advocacy, medical and correctional interests.159 An advisory board would give these groups the opportunity to study and evaluate the services available to prisoners, review proposed budgets and annual plans, and make both programming and funding recommendations. The publication and dissemination of advisory board evaluations would ensure public accountability for the successes and failures in prison mental health programming.

Cultural and Linguistic Barriers

There is significant cultural and linguistic diversity within the Massachusetts prison population. As of January 2002, DOC identified the demographic breakdown in the prison community as 45 percent Caucasian, 27 percent African American, 26 percent Hispanic, and 1 percent Asian.160 Population trends during the previous decade show an increase in the number of Asian inmates, and a dramatic increase in the proportion of Hispanic inmates.161 Furthermore, fewer than 83 percent of inmates identified English as their primary language.162

In the U.S. population at large, the prevalence of mental disorders is similar across minority and majority populations.163 Community-based studies have found little variation in the types of mental illness that affect different populations,164 yet there is misdiagnosis and under-treatment for minorities with mental illness.165 Among the factors that contribute to the under-serving of minorities are cultural misunderstandings and communication problems between patient and provider, a distrust of mental health services, and racism.166 To avoid such pitfalls in the prison system, and to meet its obligations under national and international law, 167 DOC must provide culturally and linguistically competent mental health services.

Neither DOC nor UMMS includes demographic information in its prison mental health utilization data,168 so it is difficult to assess how effectively existing DOC programs serve minority inmates. However, a number of factors suggest that treatment disparities exist. First, a demographic analysis of mentally ill inmates receiving discharge services found that the treatment population was disproportionately white.169 This study also found significant diagnostic differences between African American and Hispanic inmates and white inmates, even though these differences are not found in the community at large.170 Second, despite the adverse impact of cultural barriers to effective treatment, there is no provision in the health services contract to encourage UMMS to hire mental health providers who demographically resemble the inmate population.171 White, English-speaking monolinguists perform the vast majority of the intake screenings that identify those entering the prison system in greatest need of mental health services.172 Third, there is no mental health programming specifically targeted to historically under-served populations, such as group therapy sessions for African American inmates.173 These factors, when viewed in conjunction with national data indicating that the mental health needs of minority inmates are under-identified, 174 suggest that the minority population in Massachusetts prisons may be under-served.

It is also unclear if DOC efforts have been successful in meeting the mental health needs of non-English speaking inmates. For example, 14.5 percent of the inmate population identify Spanish as their primary language, indicating a significant demand for Spanish-speaking health providers.175 DOC responded to this need by including contract provisions requiring translation services generally and bilingual health providers for the Hispanic population in particular.176 To ensure the privacy of non-English speaking inmates, the use of inmates as translators is expressly prohibited.177 Unfortunately, there is some evidence that facility practices have not met these contract requirements. UMMS indicated that it was having difficulty maintaining its goal of one Spanish-speaking mental health provider per facility.178 A former mental health worker and a former inmate each stated that inmates were used as translators in therapy sessions for Spanish-speaking inmates as recently as 2000.179 Translation services for non-English speakers whose primary language is not Spanish are provided by a commercial telephone company.180 This practice may not provide the interpersonal exchange and confidentiality necessary to forge an effective therapeutic relationship.

To minimize diagnosis and treatment barriers, DOC should ensure that its mental health treatment team reflects, as far as is practicable, the cultural and linguistic diversity of the inmate population. DOC and UMMS should also explore the potential for developing culturally targeted programming. Since the shortage of bilingual and minority mental health providers may pose challenges to implementing these initiatives, DOC should offer UMMS financial assistance to achieve these goals.

Discipline

There are also special challenges to the prison mental health system in the area of disciplinary concerns. Because mental illness inhibits one's ability to adjust to the highly structured prison environment, inmates with mental health needs are significantly more likely to commit rule infractions than other inmates.181 Beyond the period of adjustment, an inmate's mental health needs may be the cause of acts of violence and other "bad behavior."182 Mental illness may also influence how an inmate responds to disciplinary action.183

With mentally ill inmates, as with all inmates, the correctional system must accommodate the dual goals of punishment and rehabilitation.184 Although these goals may be in tension, the constitution prohibits the use of penalties that conflict with inmates' basic mental health needs.185 Thus, the discipline of inmates with mental illness must take treatment needs into account.

DOC has taken some steps to address the impact of discipline on inmates with mental illness. According to DOC, mental health staff discuss the disciplinary problems of inmates with treatment plans at periodic meetings.186 Likewise, mental health staff and the deputy superintendents of each facility discuss inmates who pose significant disciplinary concerns.187 DOC states that an inmate's mental health status is informally considered in disciplinary determinations and that the prison superintendent is authorized to modify the punishment of any inmate.188 DOC could strengthen these efforts by mandating the current consultations between correctional staff and mental health professionals and systematizing the consideration of mental health needs during disciplinary determinations.

Other mental health concerns in the disciplinary context remain unaddressed. DOC's classification system assigns inmates to particular prisons based in part on their perceived need for supervision.189 Given the correlation between disciplinary problems and mental illness, it is likely that mentally ill inmates are more frequently assigned to higher security facilities.190 Ironically, certain treatment options are unavailable to inmates at maximum-security facilities due to safety concerns.191 Whether other services sufficiently compensate for the absence of these options is unclear. 192 DOC should monitor the frequency of disciplinary actions against inmates with mental illness and seek to ensure that an inmate's classification does not impede access to medically indicated treatment.

Punishing rule-breaking with disciplinary segregation is a particularly significant problem for inmates with mental illness given the compelling evidence of the adverse impact of disciplinary segregation on mental health.193 Some accommodations to mental health needs have been made through DOC's routine monitoring of the mental health needs of inmates in segregation194 and through the statutory mandate that DMH supervise the segregation units.195 However, there is no DOC mechanism whereby mental health providers can designate inmates clinically ineligible for this severe form of punishment.196 Furthermore, while an inmate who becomes acutely mentally ill in segregation can be transferred to Bridgewater State Hospital for intensive psychiatric care, under DOC policy he may be returned to segregation following his hospitalization.197 This practice is in blatant conflict with the aim of rehabilitation and may demonstrate deliberate indifference to inmates' mental health.198 The legislature could help end this practice by enacting the proposal to ban the use of disciplinary segregation for emotionally disturbed inmates.199 Enacting the pending bill to limit the amount of time that any inmate could be confined to disciplinary segregation200 would also help protect inmate mental health in disciplinary settings.

Reentry Assistance

Inmates with mental illness face significant hurdles to post-release care. Among the most significant concerns are the need to establish community-based mental health treatment plans and the inability to finance post-release care. Many inmates never received health care services prior to incarceration and are thus unfamiliar with community-based care systems.201 Concerns about housing and employment may trump efforts to pursue mental health services. Furthermore, the cost of mental health care post-release can be prohibitive. DOC has taken steps to address these concerns and provide continuity of care for mentally ill offenders leaving custody.

DMH's Forensic Transition Team is the cornerstone of DOC's reentry assistance for inmates with severe mental illness.202 Through this program, eligible inmates who are being released are referred to a DMH liaison.203 During the final months of incarceration DOC shares medical information and treatment plans for these inmates with DMH and DMH continues to monitor their mental health care for up to three months after release.204 This program has received accolades for its efforts to facilitate community reintegration for inmates with severe mental health needs.205 However, a comparison of treatment and release data shows the limited scope of this initiative. In the year 2000, approximately 21.8 percent of inmates in DOC facilities received therapy and 12.7 percent were on psychotropic medications.206 During the same year, only 2.5 percent of the inmates released from prison were assisted by the Forensic Transition Team.207

Inmates who are not served by the Forensic Transition Team also receive some discharge assistance. Under DOC policy, all inmates who are within one year of their scheduled release dates receive comprehensive transition plans that address their mental health concerns.208 Furthermore, DOC policies require that three months prior to release all inmates receiving mental health treatment be assessed for post-release treatment needs.209 These inmates are provided with written after-care plans and receive referrals to community-based providers.210 In addition, DOC provides inmates with up to a 30-day supply of prescription medication on discharge.211

DOC has also worked to expand post-release support services for inmates with mental illness. In 2001, DOC obtained a grant from the U.S. Department of Justice to expand the case-management services of the Forensic Transition Team from a small number of acute cases to the broader population needing mental health support. 212 The grant provides funding for five community-based mental health coordinators to help those ineligible for DMH services find mental health services.213 DOC has also developed the Massachusetts Offender Reentry Initiative to coordinate vocational, educational, law-enforcement, medical and correctional programming for inmates and recently released offenders.214 The initiative will allow state agencies to focus on areas of demonstrated need and will increase the ease with which inmates, including those with mental illness, can access services. Since neither the mental health service expansion nor the reentry initiative is specifically supported with state funding, their long-term financial viability is uncertain. DOC and its partner agencies should urge the legislature to make express financial commitments to these efforts.

In addition to financial considerations, the success of these reintegration efforts depends significantly on the continuity of mental health treatment during the transition from prison into the community. Unfortunately, many cannot afford community-based mental health services. The majority of inmates are eligible for MassHealth, the state Medicaid program, upon discharge, but experience a delay of up to three months between discharge and MassHealth enrollment.215 Under the current system, DOC assists inmates with the MassHealth application process, but the Division of Medical Assistance (DMA) does not process these applications until after discharge.216 As a result, mental health care is often financially unavailable during the critical post-release period. Failure to obtain community mental health treatment greatly increases the likelihood that former inmates with mental illness will commit new offenses and be reincarcerated.217 The legislature could rectify the problem of delayed MassHealth enrollment by enacting a proposal to require DMA to conduct initial eligibility screenings and process applications as part of DOC's discharge planning.218

Quality Improvement

National and international standards require DOC to monitor the adequacy of mental health care.219 The courts have held that quality assurance is a necessary component of a constitutionally sufficient prison mental health system.220 Periodic assessment is necessary to ensure that all inmates needing psychiatric services are receiving the care required under the Standard Minimum Rules for the Treatment of Prisoners.221 Furthermore, both quality assurance and quality improvement are central to the progressive realization of the right to health set forth in ICESCR.222

Currently, DOC has two principle mechanisms to monitor the quality of mental health services in the prison system.223 First, DOC's contract requires UMMS to provide DOC with periodic administration and utilization reports on a range of system metrics, including staffing levels and service provision at each DOC facility.224 These reports allow DOC to assess the extent to which current structures comport with the Salvi recommendations. Second, the contract authorizes DOC to audit health service delivery through a review of inmate medical records.225 Audits focus on whether processes comply with contract requirements, such as whether mental health assessments include a coded diagnosis and whether master treatment plans are reevaluated within six months.226 These mechanisms provide important measures of the structure and process of mental health service delivery. Since the findings are generally not available to the public, however, it is unclear whether they are being effectively utilized to promote quality.

Comprehensive evaluation of health care quality requires an analysis not only of structure and process, but also of outcome.227 DOC addresses this concern by requiring UMMS to engage in quality assurance and improvement programs.228 Under the contract, however, UMMS is responsible for identifying problems to be remedied and choosing quality assurance indicators to be monitored.229 Thus, UMMS decides whether its own systems and processes are effectively meeting the needs of inmates with mental illness.230

This arrangement limits quality improvement in two important ways. First, there is no independent mechanism to assess the extent to which the mental health contractor is meeting the needs of the inmate population. Knowing what percentage of the population is receiving care has little meaning unless one also knows what percentage of the population needs care. The consequence of this limitation is that although DOC is able to assess contract compliance, it does not have the means to assess what contract modifications may be appropriate to ensure that services comport with need.

Second, this allocation of responsibility may limit the scope of quality improvement programs, because as the contractor UMMS lacks the authority to alter important aspects of prison policy. For example, the Salvi report expressed concern that the behavioral threshold at which correctional officers referred inmates for mental health treatment was too high.231 While UMMS may have the capacity to monitor the extent to which these referrals encompass inmates in need of treatment, UMMS has no supervisory authority over correctional officers and could not enforce any referral requirement.232 As a result, the existing system may also limit quality improvement efforts by ignoring the important collaboration between mental health and correctional staff in identifying and addressing mental health needs.

DOC should take independent steps to measure its success in meeting inmate mental health needs, including collecting data on the demographics of inmates in mental health treatment; the frequency with which correctional officers and inmates initiate requests for treatment and what percentage of these requests involve valid mental health treatment needs; the relationship between rule-breaking and existence of and need for a mental health treatment plan; and the rate of recidivism for mentally disordered inmates in contrast to the general inmate population.233 These data would likely provide insights into other opportunities to improve inmate mental health care.

Additionally, as recommended by the Salvi report, DOC should periodically conduct independent needs assessments to determine the extent and nature of mental health concerns in the prison population.234 A basic needs assessment could be implemented by simply adding an inmate interview segment to the existing facility audit.235 Collecting, analyzing, and disclosing this information would enable DOC to improve contractor accountability, as well as advance the research mission of UMMS. Disclosure would also improve accountability by providing the public with the tools to make an objective assessment of the strengths and weaknesses of the prison mental health system.236

Conclusion

Massachusetts faces substantial challenges in meeting the mental health needs of the prison population. While DOC and UMMS have dramatically improved the quality of prison mental health services in recent years, additional changes are necessary. Particular attention should be paid to increasing disclosure and public accountability, reducing cultural and linguistic barriers to treatment, addressing disciplinary issues, improving reentry assistance and implementing more comprehensive quality improvement programs. Changes in these areas require the combined efforts of UMMS, DOC and the legislature. While the current budget concerns may delay the implementation of some improvements, fiscal concerns should not be permitted to undercut existing prison mental health programming. The significant mental health needs of the Massachusetts prison population require and deserve continued investment and attention.

1. H. Richard Lamb & Linda E. Weinberger, Persons With Severe Mental Illness in Jails and Prisons: A Review, 49 Psychiatric Services 483, 486 (1998).[back]

2.Id.[back]

3. Paula M. Ditton, U.S. Dep't of Justice, Special Rep. No. NCJ 174463, Mental Health and Treatment of Inmates and Probationers (1999).[back]

4. Id. at 2.[back]

5. Id at 9.[back]

6. Id. at 3.[back]

7. Id. at 7.[back]

8. Id. at 9.[back]

9. The state prison system houses convicted offenders who have been sentenced to terms of more that two-and-a-half years. See generally Governor's Special Advisory Panel on Forensic Mental Health, Final Report 118 (1989). This article does not address the problems surrounding in-patient mental health treatment at Bridgewater State Hospital or the unique mental health needs of incarcerated women.[back]

10. G.A. Res. 217A (III), U.N. GAOR, 3rd Comm., 3rd Sess., pt. 1, 183rd plen. mtg., art. 5, U.N. Doc. A/810at 71 (1948) [hereinafter U.N. UDHR][back]

11. G.A. Res. 2200A (XXI), U.N. GAOR. 3rd Comm., 21st Sess., 1496th plen. Mtg., U.N. Doc A/6316, arts. 7, 10 (1966) [hereinafter U.N. ICCPR]. In ratifying the ICCPR, the United States expressed the reservation that it considered itself bound by Article 7 only to the extent that it comported with the 5th, 8th and 14th Amendments to the United States Constitution. U.N. ICCPR Reservations Made by the United States of America, June 8, 1992, available at http://www.unhchr.ch/html/menu3/b/treaty5_asp.htm.[back]

12. U.N. ICCPR, supra note 11, at art. 10, para. 1.[back]

13. Id. at art. 10, para. 3. On ratification of the ICCPR, the United States expressed its understanding that this provision did not diminish the goals of punishment, deterrence, and incapacitation as additional legitimate purposes for a penitentiary system. U.N. ICCPR Understandings Expressed by the United States of America, June 8, 1992, available at http://www.unhchr.ch/html/menu3/b/treaty5_asp.htm. [back]

14. See U.N. ICCPR, General Comment 21 "Concerning humane treatment of persons deprived of liberty (Art 10)" Apr. 10, 1992, available at http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CCPR+General+comment+21.En?OpenDocument. [back]

15. U.N. UDHR, supra note 10, at art. 25, para. 1.[back]

16. G.A. Res. 2200A (XXI), U.N. GAOR, 3rd Comm., 21st Sess., Annex, 1496th plen. Mtg., U.N. Doc. A/6316, art. 12, para. 1 (1966) [hereinafter U.N. ICESCR]. The United States signed this covenant on Oct. 5, 1977, but has not ratified it. See U.N. Office of the High Commissioner for Human Rights, Status of Ratifications of the Principal International Human Rights Treaties, Feb. 8, 2002, available at http://www.unhchr.ch/pdf/report.pdf. [back]

17. U.N. ICESCR, supra note 16, at art. 12, para. 2(d).[back]

18. See U.N. ESCOR, 22d Sess., U.N. Doc. E/C.12/2000/4 (2000), General Comment 14 Aug. 11, 2000, available at http://193.194.138.190/tbs/doc.nsf/(symbol)/E.C.12.2000.4,+CESCR+General+comment+14.En?OpenDocument (addressing issues related to the implementation of the "right to highest attainable standard of health" under article 12 of the International Covenant on Economic, Social and Cultural Rights).[back]

19. Standard Minimum Rules for the Treatment of Prisoners, E.S.C. Res. 663 C (XXIV) (1957) and 2076 (LXII) (1977), available at http://www.unhchr.ch/html/menu3/b/h_comp34.htm.[back]

20. Id. at para. 22(1).[back]

21. Id. at para. 24.[back]

22. Id. at para. 25(1).[back]

23. Id. at para. 25(2).[back]

24. Id. at para. 49(1).[back]

25. Id. at para. 51(2).[back]

26. Id. at para. 62.[back]

27. Id. at para. 63.[back]

28. Id. at para. 66(3).[back]

29. Id. at para. 82(4).[back]

30. Id. at para. 83.[back]

31. See, e.g., Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 37/194, U.N. GAOR. 3rd Comm., 37th Sess. 111th plen. mtg., Principle 1 (1982); Basic Principles for the Treatment of Prisoners, G.A. Res. 45/111, U.N. Doc. A/RES/45/111, para. 9 (1990).[back]

32. Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, G.A. Res. 46/119 (1991), available at http://www.unhchr.ch/html/menu3/b/68.htm.[back]

33. Id. at Principle 20(2).[back]

34. Id.[back]

35. See generally Peter Malanczuk, Akehurst's Modern Introduction to International Law (Retledge 7th ed. 1997), cited in International Human Rights in Context 72, 73 (Henry J. Steiner & Philip Alston eds., 2d ed. 2000) (explaining that if international norms are uniformly asserted over time they become binding as international customary law).[back]

36. U.S. Const. amend. VIII ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.").[back]

37. 429 U.S. 97, 104 (1976).[back]

38. Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977).[back]

39. Id. (further describing mental health treatment as important to rehabilitation, a primary purpose of incarceration).[back]

40. Id. at 47-48.[back]

41. Thomas L. Hafemeister, Legal Aspects of the Treatment of Offenders with Mental Disorders in Treatment of Offenders with Mental Disorders 44, 59 (Robert M. Wettstein ed., 1998).[back]

42. Although "serious" has not been defined beyond the three elements described in Bowring, it has generally been seen as referring only to those mental conditions that require timely professional attention. See, e.g., Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990). [back]

43. In Farmer v. Brennan, the Supreme Court held that a prison official may be held liable under the Eighth Amendment for acting with "deliberate indifference" only if he knows that inmates face a substantial risk of serious harm and disregards that risk. 511 U.S. 825, 835-38 (1994).[back]

44. Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).[back]

45. See Hafemeister, supra note 41, at 59. [back]

46. 503 F. Supp. 1265, 1339 (S.D. Tex. 1980)(class action challenging excessively harsh conditions of Texas prisons).[back]

47. James R. Pingeon, Forgotten Lives: Mentally Disordered Prisoners in Massachusetts, 47 Advisor Fall/Winter 1997, at 13 [hereinafter Forgotten Lives]. Although courts deny relying on professional standards from organizations such as the National Commission on Correctional Health Care and the American Psychiatric Association, these standards are often the basis for both judicial evaluation and remedies in prison mental health cases. Id. [back]

48. See Madrid v. Gomez, 889 F. Supp 1146, 1256-1258 (N.D. Cal. 1995) (challenging the constitutionality of mental health treatment at Pelican Bay State Prison in California), rev'd on other grounds, 190 F.3d 990 (1999).[back]

49. See Casey v. Lewis, 834 F. Supp. 1477, 1549-1550 (D. Ariz. 1993) (class action alleging lack of medical, dental and mental health care in Arizona Department of Corrections was cruel and unusual punishment).[back]

50. In this article, "segregation" and "segregation units" are used to describe the mode of prison discipline wherein inmates are placed in some form of lockup and isolated from the general prison population.[back]

51. Id. at 1548-49.[back]

52. See Franklin v. District of Columbia, 960 F. Supp. 394 (D.D.C. 1997), rev'd, 163 F.3d 625 (1998) (finding grossly inadequate mental health services for Hispanic inmates because of insufficient translation).[back]

53. See Wakefield v. Thompson, 177 F.3d 1160, 1164 (9th Cir. 1999). This holding can logically be extended to establish an ongoing duty to provide the full range of medically indicated mental health services for the period immediately following release. Fred Cohen, The Mentally Disordered Inmate and the Law para. 2.17 (Supp. 2000).[back]

54. See Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986); Harris v. Thigpen, 941 F.2d 1495, 1509 (11th Cir. 1991).[back]

55. Mass. Const., pt. 1, art. XXVI, amended by Mass. Const. amend. CXVI. ("No magistrate or court of law, shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments.").[back]

56. See generally Good v. Comm'r of Correction, 629 N.E.2d 1321, 1325 (1994) (evaluating inmate transfer under standards of U.S. and Massachusetts Constitutions). In addition, the court held that an inmate can assert a cause of action under Article 26 "if there is a substantial risk that the inmate will suffer serious harm as a result of the conditions of his confinement." Id. at 1326.[back]

57. Id. (citing Michaud v. Sheriff of Essex County, 458 N.E.2d 702 (1983)).[back]

58. Mass. Gen. Laws ch. 124, §§ 1 (a),(c),(m),(q) (2000).[back]

59. See generally Mass. Gen. Laws ch. 124, § 1 (2000).[back]

60. Mass. Gen. Laws ch. 127, § 16 (2000).[back]

61. Mass. Gen. Laws ch. 127, § 17 (2000).[back]

62. Mass. Gen. Laws ch. 127, § 39 (2000).[back]

63. Mass. Gen. Laws ch. 19, § 1 (2000).[back]

64. E. Fuller Torrey et al., Criminalizing the Seriously Mentally Ill 10 (1992).[back]

65. Id. at 11.[back]

66. Id. at 12.[back]

67. Mass. Dep't of Correction, Bridgewater State Hospital, available at http://www.state.ma.us/doc/facility/FBridgewaterStateHosp.html.[back]

68. Gregory J. Howard, Titicut Follies: A Review, 1 J. Crim. Just. & Popular Culture 2 (1993) (film review).[back]

69. Tom Ryan & Bob Casey, Screw: A Guard's View of Bridgewater State Hospital (1981).[back]

70. Forgotten Lives, supra note 47, at 15 (indicating a strong interest in having Bridgewater accredited by the Joint Commission on Accreditation of Healthcare Organizations).[back]

71. See Governor's Special Advisory Panel on Forensic Mental Health, supra note 9, at 127.[back]

72. See id. at 128.[back]

73. See Curtis Prout & Robert N. Ross, Care and Punishment 45, 86 (1988).[back]

74. See id. at 98.[back]

75. See Governor's Special Advisory Panel on Forensic Mental Health, supra note 9, at 127.[back]

76. See id. at 128.[back]

77. See id.[back]

78. Christina Robb, State Fires 23 Prison Mental Crisis Workers, Boston Globe, Apr. 18, 1991 at 23.[back]

79. Governor's Special Advisory Panel on Forensic Mental Health, supra note 9, at 128-129.[back]

80. See id. at 129.[back]

81. See id. at 131-132.[back]

82. Robb, supra note 78. Two of the facility's six psychiatrists quit in protest, stating it would no longer be possible to provide sufficient mental health care for inmates. Id. [back]

83. Scot Lehigh, Weld Privatizes Medical Care for Inmates, Boston Globe, Sept. 27, 1991, at 24. [back]

84. Id.[back]

85. Efrain Hernandez, Jr., Troubled Prison Health Care Provider is Outbid for Mass. Contract, Boston Globe, Apr. 5, 1994, at 17. CMS held the contract for DOC health services until January 2003. See generally Mass. Dep't of Correction, Massachusetts Department of Correction Announces Health Services Provider, available at http://www.state.ma.us/doc/MEDIA/HealthCare.html [hereinafter DOC Contract Announcement] (announcing award of prison health services contract to University of Massachusetts Medical School). [back]

86. John Ellement, Guilty Verdict Sends Salvi to Prison for Life, Boston Globe, Mar. 19, 1996, at 1 (describing the conviction and background on the attacks).[back]

87. Manny Lopez, Salvi Outburst Caps Last Day of Court Hearing on Competency, Boston Globe, July 29, 1995, at 20. The court found him competent to stand trial. John Ellement, SJC Denies Salvi New Competency Hearing in Clinic Killings, Boston Globe, Sept. 7, 1995, at 29.[back]

88. Report on the Psychiatric Management of John Salvi in Massachusetts DOC Prison Facilities 1995-1996 1 (University of Mass. Med. Ctr., 1997) [hereinafter Salvi report]. In fact, the DOC spokesperson stated that Salvi "displayed no indication that he needed mental health care." Stephen Kurkjian & John Ellement, No Mental Health Treatment Offered; The Death of John Salvi, Boston Globe, Nov. 30, 1996, at A1.[back]

89. E.g. Editorial, John Salvi's Demons, Boston Globe, Dec. 3, 1996, at A22. Also Stephen Kurkjian & Brian MacQuarrie, Inmate Mental Health is Questioned, Boston Globe, Dec. 4, 1996, at B1; Connie Paige & Michael Lasalandra, By His Own Hand; Did the System Fail Salvi?, Boston Herald, Nov. 30, 1996, at 7.[back]

90. See Stephen Kurkjian, Advocate Says Many Troubled Inmates Lack Adequate Care, Boston Globe, Dec. 3, 1996, at B4.[back]

91. Salvi report, supra note 88.[back]

92. American Psychiatric Ass'n, Psychiatric Services in Jails and Prisons (1989). The APA released an update of the guidelines in 2000. American Psychiatric Ass'n, Psychiatric Services in Jails and Prisons (2d ed., 2000). To the extent discussed in this article, the recommendations are unchanged. [back]

93. Nat'l Comm'n on Correctional Health Care, Standards for Health Services in Prisons (1992). As with the APA, the NCCHC has subsequently updated its standards. Nat'l Comm'n on Correctional Health Care, Standards for Health Services in Prisons (1997). Likewise, the nature of the changes does not alter the analysis in this article.[back]

94. Salvi report, supra note 88, at 11-18.[back]

95. Id. at 36-38, 44.[back]

96. Id. at 34-36.[back]

97. See id. at 35.[back]

98. Id. at 39.[back]

99. Id. at 29-33.[back]

100. Id. at 11-17.[back]

101. Id. at 29.[back]

102. Id. at 29, 33.[back]

103. Id. at 34.[back]

104. Id. at 36, 42.[back]

105. Id. at 38.[back]

106. Id. at 42.[back]

107. Id. at 34, 41, 43.[back]

108. Mass. Dep't of Correction, Request for Response: Comprehensive Health Services to Massachusetts Prison Population, RFR File No. 98-9004-R21 (Jan. 1998), available at ftp://ftp.comm-pass.com/Data/00285101.PDF [hereinafter 1998 DOC Bid Solicitation].[back]

109. Salvi report, supra note 88, at 37.[back]

110. See Kenneth L. Appelbaum, Thomas D. Manning & John D. Noonan, A University-State-Corporation Partnership for Providing Correctional Mental Health Services, 53 Psychiatric Services 185 (2002) [hereinafter University-State-Corporation Partnership] (describing the experience of participants and the benefits of such a partnership).[back]

111. Id. (describing division of responsibilities between CMS and UMMS).[back]

112. See supra notes 89-90 and accompanying text.[back]

113. E.g. Zachary R. Dowdy, State Faulted on Prison Suicides, Boston Globe, June 25, 1998, at B1.[back]

114. See supra notes 3-8 and accompanying text.[back]

115. See, e.g., Editorial, Treatment for the Mentally Ill in Jail, Boston Globe, July 21, 1999, at A14 (describing efforts to meet need for mental health services for Massachusetts inmates).[back]

116. E.g. H.B. 4804, 182d Gen. Ct., Reg. Sess. (Mass. 2001) (instituting statutory requirements for prison mental health care); H.B. 3975, 182d Gen. Ct., Reg. Sess. (Mass. 2001) (limiting the use of segregation in prison discipline); H.B. 3407, 182d Gen. Ct., Reg. Sess. (Mass. 2001) (creating a DOC advisory board). Absent contrary notation, the bills and bill numbers referenced throughout this article are from the 2001-2002 legislative session. Each of the bill sponsors has indicated an intent to reintroduce the referenced legislation in substantially similar or identical form in the current legislative session.[back]

117. See, e.g., Hearing on Corrections Before the J. Comm. on Public Safety, 182d Gen. Ct., Reg. Sess. (Mass. 2001) (considering a wide range of correctional issues including discipline and community involvement); Hearing Before the J. Comm. on Human Serv. & Elderly Affairs, 182d Gen. Ct., Reg. Sess. (Mass. 2001) (considering MassHealth enrollment for released inmates among other issues).[back]

118. See Fiscal Year 1998 Appropriations, ch. 43, § 2, 1997 Mass. Acts 150, 445 (item 8900-0004 and accompanying text). The DOC used the $2 million increase to address existing expenses, noting that overall funding for health services was insufficient to meet costs. Zachary R. Dowdy, Prison Officials Seek More Therapy Funding, Boston Globe, Aug. 1, 1997, at B8 (describing DOC concern that the budget increase was insufficient to meet the growing demand for medical and mental health services).[back]

119. See Fiscal Year 1999 Appropriations, ch. 194, § 2, 1998 Mass. Acts. 425, 738 (item 8900-0004 and accompanying text).[back]

120. Id.[back]

121. See, e.g., Fiscal Year 2000 Appropriations, ch. 127, § 2, 1999 Mass. Acts 337, 698-699 (text accompanying item 8900-0004) ("[S]aid report shall detail the costs incurred and services utilized, by funding source, resulting from implementation of the recommendations in the report dated January 31, 1997 and prepared by the university of Massachusetts medical center relative to the management of inmate psychiatric services known as the Salvi recommendations.").[back]

122. See Douglas Belkin, Suicides Tell Story of Prison Problems, Boston Globe, June 3, 2001, at B1 (citing Rep. Kay Khan for the proposition that lack of legislative oversight is partly responsible for delays in improving prison mental health services).[back]

123. See supra notes 100-107 and accompanying text.[back]

124. See generally 1998 DOC Bid Solicitation, supra note 108, at 41-55 (describing mental health services to be provided).[back]

125. Salvi report, supra note 88, at 37.[back]

126. See generally University-State-Corporate Partnership, supra note 110, at 186 (finding that correctional health suffers from poor image and difficulty in recruiting). [back]

127. See Kenneth L. Appelbaum, James M. Hickey & Ira Packer, The Role of Correctional Officers in Multidisciplinary Mental Health Care in Prisons, 52 Psychiatric Services 1343, 1345 (2001) [hereinafter Correctional Officers] (finding that the mental health workers depend on the information correctional officers share based on their daily contact with inmates).[back]

128. Salvi report, supra note 88, at 39.[back]

129. Id. at 40.[back]

130. See, e.g., P. Randall Kropp et al., The Perceptions of Correctional Officers Towards Mentally Disordered Offenders, 12 Int'l J. Law & Psychiatry 181, 187 (1989)(finding that 95 percent of correctional officers surveyed wanted more training to deal with mentally disordered offenders).[back]

131. Correctional Officers, supra note 127, at 1346-47 ("Mutual respect, proper orientation and training, and ongoing communication and cooperation provide the foundation for meaningful contributions to mental health care by correctional officers." Id. at 1347).[back]

132. University-State-Corporate Partnership, supra note 110, at 186 (noting that medical schools maintain state-of-the-art practices and bring these qualities to the criminal justice system).[back]

133. See U. Mass., UMMS Fellowship in Law and Psychology, available at http://www.umassmed.edu/forensicpsychiatry (describing fellowship opportunities in UMMS psychiatry department).[back]

134. See University-State-Corporate Partnership, supra note 110, at 186 (finding that reputation and credibility help with recruitment and retention).[back]

135. See U. Mass., An Introduction to UMass Medical School, available at http://www.umassmed.edu/about (describing the origins and mission of the medical school).[back]

136. Compare Zachary R. Dowd, Counseling Increased for Inmates in Aftermath of Salvi Suicide, Boston Globe, July 24, 1997, at B1 (stating that in 1996 DOC spent approximately $3.2 million on mental health services out of a total health care budget of over $40 million), with E-mail from Andrew Harris, Deputy Director, Health and Criminal Justice Programs, University of Massachusetts Medical School, to author (Mar. 18, 2002, 09:47:10 EST) (on file with author) (indicating that DOC allocated $5.4 million of $55.4 million health care budget on prison mental health in 2002).[back]

137. E-mail from Andrew Harris, supra note 136 (indicating that, in fiscal year 2002, federal Medicaid disproportionate share hospital payments to UMMS accounted for roughly 25 percent of total spending on prison mental health).[back]

138. Zachary R. Dowdy, State Faulted for Prison Suicides, Boston Globe, June 25, 1998, at B1 (citing Deputy Commissioner Dennehy for the proposition that DOC implemented the Salvi report recommendations that did not require money). [back]

139. Telephone Interview with Andrew Harris, Deputy Director, Health and Criminal Justice Programs, University of Massachusetts Medical School (Mar. 12, 2002).[back]

140. Compare Salvi report, supra note 88, at 36-37 (indicating that in 1997, 10 percent of inmates at MCI-Concord received psychiatric care and 8 percent of inmates at MCI-Cedar Junction were on psychotropic medication) with University of Massachusetts Medical School, Prison Mental Health Statistics February 2002 Internal Report (on file with author) (indicating that in 2002, 21.8 percent of inmates at MCI-Concord had active mental health treatment plans and 13.3 percent of inmates at MCI-Cedar Junction were on psychotropic medication). [back]

141. Telephone Interview with James Pingeon, Staff Attorney, Massachusetts Correctional Legal Services (Mar. 14, 2002).[back]

142. See generally Editorial, Illness Behind Bars, Boston Globe, Aug. 5, 2000, at A14 (commending the quality of mental health treatment for prisoners in Massachusetts).[back]

143. Mass. Dep't of Correction, Request for Response: Comprehensive Health Services to Massachusetts Prison Population, RFR File No. 03-9004-R21 (Apr. 2002), available at ftp://ftp.comm-pass.com/Data/01317703.pdf [hereinafter 2002 DOC Bid Solicitation].[back]

144. DOC Contract Announcement, supra note 85.[back]

145. Editorial, Good Medicine in Prison, Boston Globe, Nov. 27, 2002, at A18 (supporting the UMMS bid for the prison health services contract).[back]

146. See, e.g., Yvonne Abraham & Rick Klein, Tough Times Predicted for State, Boston Globe, Jan. 17, 2002, at B4 (characterizing state budget situation as a fiscal crisis).[back]

147. Douglas Belkin, State to Close Three Prisons to Trim Costs, Boston Globe, Mar. 5, 2002, at B7 (describing plans to close prisons in Lancaster, Shirley and Bridgewater).[back]

148. See Mitt Romney, Governor's address on the state's financial condition (Jan. 29, 2003), reprinted in Addressing the Deficit,Boston Globe, Jan. 30, 2003, at B5 (announcing $3 billion projected budget shortfall for fiscal year 2004).[back]

149. See supra Part I.[back]

150. See supra notes 58-62 and accompanying text.[back]

151. See, e.g., Basic Principles for the Treatment of Prisoners, G.A. Res. 45/111 para. 9 of Dec. 14, 1990; American Psychiatric Ass'n, Psychiatric Services in Jails and Prisons 11 (2d ed. 2000) ("The fundamental policy goal . . . [should be] to provide the same level of mental health services to each patient in the criminal justice process that should be available in the community."). [back]

152. H.B. 4804, 182d Gen. Ct., Reg. Sess. (Mass. 2001) (instituting statutory requirements for prison mental health care).[back]

153. See supra notes 135-137.[back]

154. All extra-legislative budget information in this article was obtained from UMMS and, where possible, confirmed by DOC.[back]

155. See, e.g., Fiscal Year 2001 Appropriations, ch. 159, § 2, 2000 Mass. Acts 284, 637 (item 8900-0004 and accompanying text). Recent budgets have required quarterly reporting to the House and Senate Ways and Means Committees on mental health expenditures but these reports are not made available to the public. See id. [back]

156. E-mail from Andrew Harris, supra note 136; Telephone Interview with Peter Heffernan, Regional Administrator, Health Services Division, Mass. Dep't of Correction (Mar. 15, 2002).[back]

157. Fiscal Year 2003 Appropriations, ch. 184, § 2, 2002 Mass. Legis. Serv. 205, 414-415 (West) (item 8900-0001 and accompanying text) (including funding for inmate health services in the budget line for DOC operations).[back]

158. Fiscal Year 2003 Appropriations, ch. 184, § 201, 2002 Mass. Legis. Serv. 205, 517-518 (West) (requiring the transfer of disproportionate share hospital payments to the Division of Medical Assistance).[back]

159. H.B. 3407, 182d Gen. Ct., Reg. Sess. (Mass. 2001) (creating a DOC advisory board). The version of this legislation introduced in the 2003-2004 legislative session would narrow the range of interests to be represented on the Board. See E-mail from Matthew Selig, Legislative Aide, Office of Rep. Kay Khan, to author (Dec. 19, 2002, 10:04:27 EST) (on file with author). While the revised list of participants would strengthen the voice of the advocacy community on the board, the potential exclusion of correctional interests would undermine attempts at a holistic approach to policymaking.[back]

160. Research & Planning Division, Mass. Dep't of Correction, Report No. 423, January 1, 2002 Inmate Statistics 31 (July 2002).[back]

161. See id. (describing an increase in the number of Asian inmates from 65 in 1993 to 111 in 2002 and an increase in the percentage of Hispanic inmates from 19 percent in 1991 to 26 percent in 2002).[back]

162. See id. at 16.[back]

163. U.S. Surgeon General, U.S. Dep't Health & Human Services, Mental Health: Culture, Race and Ethnicity 27 (2001).[back]

164. See, e.g., Stephanie Hartwell, An Examination of Racial Differences Among Mentally Ill Offenders in Massachusetts, 52 Psychiatric Services 234, 236 (2001).[back]

165. See U.S. Surgeon General, supra note 163, at 32.[back]

166. See id. at 42.[back]

167. See Standard Minimum Rules for the Treatment of Prisoners, supra note 19, at para. 51; Franklin v. District of Columbia, 960 F. Supp. 394 (D.D.C. 1997).[back]

168. See Telephone Interview with Kathleen Dennehy, Deputy Commissioner, Mass. Dep't of Correction (Mar. 12, 2002); Telephone Interview with Andrew Harris, supra note 139.[back]

169. Hartwell, supra note 164, at 236. The findings from this study are not direct evidence of DOC practices, as the population assessed included inmates from both DOC and county correctional facilities.[back]

170. Id. at 235.[back]

171. See generally 2002 DOC Bid Solicitation, supra note 143.[back]

172. See Telephone Interview with Andrew Harris, supra note 139; Telephone Interview with Greg Hughes, Mental Health Administrator, Health Services Division, Mass. Dep't of Correction (Mar. 21, 2002).[back]

173. See Telephone Interview with Andrew Harris, supra note 139.[back]

174. See generally Ditton, supra note 3, at 3.[back]

175. Research & Planning Division, supra note 160, at 16.[back]

176. See generally 2002 DOC Bid Solicitation, supra note 143, at 28.[back]

177. See id.[back]

178. See Telephone Interview with Andrew Harris, supra note 139 (indicating UMMS was paying a $5,000 premium for Spanish-speaking mental health providers).[back]

179. See Interview with Former Correctional Medical Services Employee (Mar. 7, 2002); Telephone Interview with Former DOC Inmate (Mar. 14, 2002).[back]

180. See Telephone Interview with Kathleen Dennehy, supra note 168; see also 2002 DOC Bid Solicitation, supra note 143, at 28. Under this system, a telephone operator serves as an intermediary between patient and therapist. [back]

181. See Correctional Officers, supra note 127, at 1344 (finding that inmates with mental disorders commit more rule infractions, spend more time in lockup, and are less likely to obtain parole than other inmates); see also Frank DiCataldo, A Typology of Patients Admitted to a Forensic Psychiatric Hospital from Correctional Settings, 27 J. Amer. Acad. Psychiatry Law 259, 260 (1999) (finding that inmates with schizophrenia get significantly more disciplinary reports during the first 90 days of admission than other inmates).[back]

182. See Terry A. Kupers, Prison Madness 80-83 (1999) (explaining that acting out and rule-breaking can be symptoms of mental disorder).[back]

183. See generally id. at 29 (being sent to lockup causes further deterioration for inmates with mental illness). Additionally, certain forms of discipline, such as segregation and isolation, have been shown to have a significant adverse impact on the mental health of otherwise psychologically healthy inmates. See, e.g., id. at 53-58. However, my discussion is limited to those with a diagnosis of mental illness prior to entering a disciplinary setting.[back]

184. See Correctional Officers, supra note 127, at 1344 (describing distinct missions of mental health workers and correctional staff).[back]

185. Casey, 834 F. Supp. at 1549-1550 (finding that discipline cannot supercede mental health treatment needs).[back]

186. See Telephone Interview with Greg Hughes, supra note 172.[back]

187. See id.[back]

188. See id.[back]

189. See Mass. Dep't of Correction, Security Levels, available at http://www.state.ma.us/doc/facility/Levels.htm.[back]

190. See Telephone Interview with James Pingeon, supra note 141 (suggesting that highest security prisons are where most acutely ill inmates are located).[back]

191. See generally University of Massachusetts Medical School, Prison Mental Health Statistics February 2002 Internal Report (on file with author).[back]

192. Compare Telephone Interview with Andrew Harris, supra note 139 (asserting that the level of care is equivalent at all prisons without regard to security level), and Telephone Interview with Greg Hughes, supra note 172 (stating that the majority of inmates in residential treatment programs are from maximum security prisons) with Telephone Interview with James Pingeon, supra note 141 (expressing concern that most severely ill offenders are excluded from residential treatment programs due to security concerns). See generally Kupers, supra note 182, at 80-81 (stating that prisoners who engage in violent behavior are often excluded from treatment programs because they are deemed too disruptive).[back]

193. See Kupers, supra note 182, at 56-58.[back]

194. See generally Salvi report, supra note 88, at 38.[back]

195. See supra Part I.[back]

196. Cf. Mass. Dep't of Correction, Mental Health, 103 DOC 650 (2001) (requiring that health care personnel evaluate inmates for contraindications prior to placement in segregation).[back]

197. See id. (resegregation of inmate following psychiatric hospitalization is determined by DOC Health Services Officer in conjunction with mental health staff at Bridgewater and prison); see also Telephone Interview with James Pingeon, supra note 141 (indicating that inmates bounce back and forth between Bridgewater and segregation).[back]

198. See, e.g., Robert Preer, Groups Rally Against Isolation Cells, Boston Globe, May 19, 2002 (Globe South), at 16 (describing campaign by advocacy groups to close the disciplinary unit at MCI- Cedar Junction).[back]

199. H.B. 2230, 182d Gen. Ct., Reg. Sess. (Mass. 2001) (prohibiting the use of segregation for inmates who have committed self-mutilation or attempted suicide).[back]

200. H.B. 3975, 182d Gen. Ct., Reg. Sess. (Mass. 2001) (limiting the use of segregation in prison discipline).[back]

201. See generally Bruce Morgan, Jail Time, Tufts Med., Winter 2000, at 17 (finding that 82 percent of prisoners in a Massachusetts county jail had never been to a doctor's office).[back]

202. See Mass. Dep't of Correction, 2000 Annual Report, at 8. DMH uniformly limits direct assistance to those who are so acutely ill as to require institutionalization in the absence of DMH programming. See generally Mass. Dep't of Mental Health, About the Department of Mental Health, available at http://www.state.ma.us/dmh/_Mainline/AboutDMH.htm.[back]

203. See Mass. Dep't of Correction, Mental Health, 103 DOC 650 (2001).[back]

204. Id. See also Hartwell, supra note 164, at 235 (analyzing racial diversity in forensic transition team participants).[back]

205. See, e.g., Harvard U., Institute for Government Innovation, Innovations in American Government, 2001 Education & Health Care Semifinalists, available at http://www.innovations.harvard.edu/Semifinalists/2001/2001eduandhealth.htm.[back]

206.Allen J. Beck & Laura M. Maruschak, U.S. Dep't of Justice, Special Rep. No. NCJ 188215, Mental Health Treatment in State Prisons, 2000 (July 2001) at 6, appendix Table B.[back]

207. See Mass. Dep't of Correction, 2000 Annual Report, at 8 (indicating that in 2000, 86 inmates were served by Forensic Transition Team); Mass. Dep't of Correction, Frequently Asked Questions, available at http://www.state.ma.us/doc/faqs.htm (indicating that in 2000, 3,487 inmates were released from DOC facilities). [back]

208. See Mass. Dep't of Correction, Release and Lower Security Preparation Program, 103 DOC 493 (2002).[back]

209. See Mass. Dep't of Correction, Mental Health, 103 DOC 650 (2001).[back]

210. See id.[back]

211. Telephone Interview with Kathleen Dennehy, supra note 168.[back]

212. Id.[back]

213. See Draft Memorandum of Understanding Between the Department of Correction and the Department of Mental Heath Regarding Mental Health Services to the Community Resource Centers (Aug. 17, 2001) (documenting collaboration to enhance delivery of mental health services to clients at community-based transition centers run by DOC).[back]

214. See Massachusetts Offender Reentry Initiative Memorandum of Understanding (July 1, 2002) (documenting agreement among the Massachusetts Sheriffs Association, the Massachusetts Parole Board, the Commissioner of Probation, the Office of Community Corrections, the Massachusetts Department of Public Health, the Massachusetts Department of Mental Health, the Massachusetts Department of Education, the Massachusetts State Workforce Investment Board, the Massachusetts Department of State Police, the Massachusetts Department of Youth Services, Vision New England, and the Department of Correction).[back]

215. See id. at 21.[back]

216. Telephone Interview with Kathleen Dennehy, supra note 168 (describing components of DOC discharge planning).[back]

217. See Judge David L. Bazelon Center for Mental Health Law, Finding the Key to Successful Transition from Jail to Community (2001) at 1 [hereinafter Finding the Key].[back]

218. See S.B. 598, 183d Gen. Ct., Reg. Sess. (Mass. 2003) (requiring DMA to develop a system to ensure that eligible inmates receive MassHealth benefits immediately upon release). Since the state would be able to claim retroactive reimbursement from the federal government upon completion of the formal post-release eligibility determination, this proposal should not be undercut by budgetary concerns. See Finding the Key, supra note 217, at 7.[back]

219. See supra Part I.[back]

220. See, e.g., Madrid v. Gomez, 889 F. Supp 1146, 1258 (N.D. Cal. 1995) (characterizing review of quality as a "primary component of a minimally acceptable correctional health care system. . . ." (quoting Lightfoot v. Walker, 486 F. Supp. 504 (S.D. Ill. 1980))).[back]

221. See Standard Minimum Rules for the Treatment of Prisoners, supra note 19, para. 82(4).[back]

222. See supra notes 16-18 and accompanying text.[back]

223. In addition to system-wide assessments, DOC contracts with MassPro to evaluate the treatment plans of individual inmates and hires consultants to develop treatment protocols for specific diagnoses. See Telephone Interview with Kathleen Dennehy, Deputy Commissioner, Mass. Dep't of Correction (Feb. 11, 2003)[back]

224. See generally 2002 DOC Bid Solicitation, supra note 143, at 96-99 (detailing reporting requirements).[back]

225. See id. at 89 (describing performance criteria and audit mechanism).[back]

226. Telephone Interview with Greg Hughes, supra note 172.[back]

227. See Avedis Donabedian, The Definition of Quality and Approaches to Its Assessment 79-84 (1980), cited in Health Law 22-23 (Barry R. Furrow et al. eds., 4th ed. 2001) (describing three-fold approach to assessing health care quality).[back]

228. See generally 2002 DOC Bid Solicitation, supra note 143, at 64 (requiring ongoing monitoring and improvement of mental health services).[back]

229. See id. [back]

230. See generally Telephone Interview with Peter Heffernan, supra note 156; Telephone Interview with Andrew Harris, supra note 139.[back]

231. Salvi report, supra note 88, at 34. [back]

232. See, e.g., Telephone Interview with Andrew Harris, supra note 139 (indicating that UMMS is working to evaluate mechanisms for assigning diagnoses, but is not measuring the frequency or nature of referral for mental health treatment).[back]

233. These data are recommended based on their relevance to the areas for improvement discussed elsewhere in this article. Additional data may be equally useful in other areas of quality improvement.[back]

234. See Salvi report, supra note 88.[back]

235. See generally 2002 DOC Bid Solicitation, supra note 143, at 96-99.[back]

236. The Massachusetts Public Health Association supports improved tracking and analysis in correctional health. Mass. Public Health Ass'n, Testimony for Health Care Committee Correctional Health Oversight Hearing, available at http://www.mphaweb.org/pol_correct_healthoversight.html.[back]

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