DOCCS policy under legal scrutiny rescinded

Containers of pills and prescription drugs are boxed for disposal during the U.S. Drug Enforcement Administration’s National Prescription Drug Take Back Day on April 24, 2021. A former New York prison doctor is suing the state Department of Corrections and Community Supervision for a now-rescinded policy that prevented critically sick incarcerated people from receiving certain medications. Patrick T. Fallon/AFP via Getty Images/TNS

A medical policy at the center of a lawsuit filed by a former prison doctor is no longer in effect in state correctional facilities, removing an approval process that allegedly prevented incarcerated New Yorkers from receiving certain prescription medications and adequate medical care.

The state Department of Corrections and Community Supervision rescinded its 2017 Medications With Abuse Potential policy Feb. 8. The policy mandated doctors or medical specialists treating people imprisoned in the state get additional department approval to prescribe certain medications that could be abused.

“The policy, which no longer exists, is part of ongoing litigation and the department has no comment,” DOCCS spokesman Thomas Mailey said in a statement.

Department representatives would not answer multiple requests over several days about when the policy was changed.

Dr. Michael Salvana, 71, filed a lawsuit June 28 in the U.S. District Court Northern District of New York against the department and current or former members of DOCCS medical staff after he allegedly endured retaliation by his colleagues for speaking out against the policy to health staff and administrators.

DOCCS Deputy Commissioner and Chief Medical Officer John Morley, who is named as a defendant in Salvana’s lawsuit, approved an updated policy in the department’s Health Services Policy Manual earlier this year about prescribing medicine for chronic pain.

State prison doctors caring for incarcerated New Yorkers can prescribe necessary medications to treat the patient’s chronic pain condition without an approval process, according to the current policy.

A separate approval continues to be required when a doctor requests an incarcerated person be prescribed non-formulary medications.

“Non-formulary medications will be approved in cases where it is documented that other formulary treatments were tried and shown to be unsuccessful in achieving functional treatment goals,” according to the policy.

The department’s updated list of non-formulary medications was not available as of press time.

Before Feb. 8, the previous MWAP policy left incarcerated people with serious and painful chronic illnesses, such as multiple sclerosis and sickle cell anemia, with substandard medical care, Salvana alleged in his complaint. The previous directive required a DOCCS regional medical director to approve or deny the prescription of a list of flagged medications including Tramadol, used for pain management; Pregabalin, used to treat fibromyalgia and spinal cord injury nerve pain; Gabapentin, taken to control seizures; Imodium, used to treat diarrhea and other common muscle relaxers.

The directive under scrutiny intended to prevent patients abusing prescription drugs as the nation’s opioid epidemic rages on.

Medication is kept in state correctional facilities under lock and key and may only be administered by DOCCS’ medical staff.

The department would not answer if the policy prevented medication abuse within state prisons while it was in effect.

“I am committed to ensuring that all people who are incarcerated in New York have access to high quality and appropriate medical care,” Sen. Julia Salazar, D-Brooklyn, who chairs the Senate’s Crime Victims, Crime & Correction Committee. “I am pleased that the Department of Corrections and Community Supervision revised their previous policy that interfered with the authority of treating medical providers to determine the appropriate course of treatment for individuals experiencing chronic pain. I will actively monitor this issue to make sure the proper protocols are followed.”

State departments can create and implement policies at their discretion without legislation nor approval from Gov. Andrew Cuomo and the Executive Chamber.

“They can do whatever they want,” said attorney Carlo A. C. de Oliveira, with Albany-based firm Cooper Erving & Savage LLP — one of Salvana’s attorneys. “It’s their policy, they created it, and they can rescind it.”

Salvana said his requests for a waiver for his patients were routinely denied by DOCCS regional medical director more than 145 miles away in Albany who did not have access to a patient’s health record. The department was required to explain the reasons for the denial in the patient’s Ambulatory Health Record.

The controversial Medications With Abuse Potential directive first went into effect in March 2017. Physicians could prescribe any medication in the DOCCS pharmacy Formulary Book without pre-approval before the policy existed.

Salvana alleges his First and 14th Amendment rights were violated when he was retaliated and discriminated against after speaking out against the policy, forcing him to resign April 28, 2020.

“I was locked out of the facility, blocked from making orders, had my orders rescinded by non-doctors who had no license to practice medicine,” Salvana said in a phone interview.

Salvana, Walsh’s former facility director, oversaw all medical staff including doctors, nurses, nurse practitioners, physical and occupational therapists, radiology technicians and the pharmacy supervisor.

The doctor, of Syracuse, has practiced medicine for more than four decades and worked as a clinical physician at the Walsh Regional Medical Unit in Rome, New York, from 2003 until 2011 and again from 2014 until his resignation.

The maximum-security medical facility is located within Mohawk Correctional, a medium-security prison in Oneida County. The medical unit has 152 beds in four-bed wards to house incarcerated New Yorkers for complex, long-term medical care.

“These are very sick people,” Salvana said of Walsh patients. “These aren’t people seeking to get high on drugs, and many of the drugs part of this policy have nothing to do with opioids. They’re not opiates. The patients were denied it, and as a result, the patients suffered needlessly.

“There’s no class action lawsuit saying ‘I went to prison and became addicted to medication,” the doctor added.

DOCCS is an accredited member of the National Commission on Correctional Health and is required to adhere by the commission and American Public Health Association treatment standards.

“The department provides the community standard of medical care for all incarcerated individuals,” Mailey said in a statement. “All DOCCS facilities have medical staff on site and individuals have access to medical services on a daily basis through the facility’s sick call procedure. For the chronic or terminally ill, DOCCS provides specialized Regional Medical Units (RMUs) in selected facilities across the state.

“When medically necessary, individuals may be transported to a community hospital for emergency treatment or other medical services. DOCCS has agreements with health care providers and specialists at major hospitals across the state, as well as agreements with several smaller hospitals in close proximity to its facilities to ensure the medical needs of incarcerated individuals are met. If more extensive care is necessary, the incarcerated individual may be moved to another hospital which can provide the additional services.”

The department regularly collaborates with the state Health Department about medical care within the state’s incarcerated population, according to Mailey, but the Health Department does not oversee or regulate New York prison hospitals, except for medical treatments relating to infectious diseases such as tuberculosis, hepatitis C, HIV/AIDS and COVID-19.

DOCCS’ medical administration can create, amend or rescind its own rules. The department commissioner and central office executive staff or the Board of Parole chair must sign off on new or amended health directives.

The former prison doctor opposed the MWAP policy since its inception, which Salvana said violated basic medical standards and quality of care requirements causing the needless infliction of pain and suffering to incarcerated patients in violation of the U.S. Constitution.

“I did all that I did and to no avail,” he said. “You’re out there yelling in the wilderness. No matter what I did and opposed and gave out examples of the problems that it created, I got no where.”

The alleged retaliation Salvana endured would violate state Labor and Civil Service laws and the New York and United States constitutions.

Former Regional Medical Director Dr. David Dinello drafted the policy. Dinello has a limited license to practice medicine after the state Health Department Board of Professional Medical Conduct in 2010 charged him with three counts of failing to adequately evaluate emergency room patients before discharge, according to the lawsuit.

He was later hired by DOCCS as a regional medical director.

DOCCS former Deputy Commissioner and Chief Medical Officer Carl Koenigsmann, a defendant named in Salvana’s suit, signed off on the initial directive in late 2016 to create the MWAP policy.

“This was not something that would be tolerated anywhere else,” Salvana said. “...There almost was a tone of discriminating against these people because they are inmates. Many of them come from certain groups of people ... and you can’t stigmatize a whole population. You can’t limit the practice of medicine to a one-page policy and hope a guy a hundred miles away is going to make the right decision.”

Dinello is a defendant in the suit, but Salvana’s attorneys have not been able to confirm the papers have been served to the former state prison medical director. The suit filing was extended to mid-August.

A preliminary conference with a judge is expected in early October.

Salvana continues to privately practice medicine in Onondoga County.

Walsh Regional Medical Unit provides on-site physician specialty consultation services for hubs in Oneida, Watertown and Elmira.

DOCCS is responsible for the medical care of all incarcerated people in its custody.

As of July 23, 2021, the total incarcerated population in state correctional facilities is 32,050, up from 31,417 people as of April 30, according to Mailey on Friday.

The state’s incarcerated population is at its lowest level in 37 years, with a reduction of more than 12,200 people since Jan. 1, 2020, according to DOCCS.

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