(7-21-16) Did a Virginia official, whose job is to protect the public from dishonest government officials, lie to me?
A whistleblower complaint alleges that Virginia Inspector General June Jennings provided me with false and misleading information. It also accuses Jennings and her assistant, Priscilla Smith, who is responsible for monitoring behavioral health agencies, of misleading state Sen. Creigh Deeds and other elected officials during testimony, and of violating HIPAA regulations when handling confidential medical information inside the Office of State Inspector General (OSIG).
Even more damning, the complaint claims the OSIG has failed to thoroughly investigate the deaths of prisoners with mental illnesses in Virginia’s jails and prisons, choosing instead to rubber stamp reports submitted to them by jailers and mental health officials.
The accusations are being levied by Cathy Hill, an OSIG employee who is seeking whistleblower protection, and two OSIG consultants, William Thomas and Ann White. In their complaint, which was filed yesterday, they asked Virginia Attorney General Mark Herring to launch a criminal investigation of the OSIG office to determine if Jennings and Smith have violated state and federal laws, writing:
It is our belief that their actions violate both Virginia and federal law, and undermine public trust and the mission of the OSIG. Our concerns have grown to the degree that we feel we can no longer in good faith remain silent.
An email request for a reaction and comment by Jennings and Smith – that I sent yesterday – has gone unanswered.
Was I told a lie?
The complaint alleges that Jennings and an unnamed OSIG public relations officer hid information from me when I filed a Freedom of Information Act request.
But before I get to that accusation, let’s examine a much more troubling charge.
The complainants claim that under Priscilla Smith’s direction, the OSIG has failed to conduct thorough, on-site investigations when an inmate with a mental illness dies inside a Virginia jail or prison. Instead, investigators have been told to conduct “desk reviews” which, have been done recently in, at least, seven incidents. Desk reviews:
“…simply involve sitting at a desk reviewing documents copied and forwarded by the agency or facility under investigation, without going onsite to conduct a comprehensive investigation or to review original source documents.”
This charge is especially worrisome because of the recent OSIG investigation into the death of Jamycheal Mitchell, a 24 year-old, African American prisoner, who died in the Hampton Roads Regional Jail last August while waiting 101 days for a bed to become available in a state mental hospital. A state medical examiner determined that Mitchell had died from a heart attack caused by starvation.
The OSIG took several months longer than usual to conduct its investigation about Mitchell and when its report was finally made public, it balked at explaining how Mitchell starved to death while in custody and under the care of Naphcare, a private company hired by the jail to provide medical care to prisoners. Instead of finding fault or even criticizing the jail, the OSIG argued that identifying individuals who might have been responsible for Mitchell’s death was counter-productive because such deaths are the result of faulty systems.
After the release of that toothless report, a rumor began making the rounds that stated the OSIG had failed to send an investigator to the jail when Mitchell’s body was first discovered in his cell. Instead, it had performed a “desk review” and rubber-stamped what jail officials had reported. (Jail officials conducted an internal probe immediately after Mitchell death and cleared themselves of any wrongdoing. They have refused to make their investigation public.)
According to the whistleblowers’ complaint, the OSIG eventually sent an investigator to Hampton Roads but “80% of the OSIG review about Mitchell’s death was completed as a ‘desk review.’
By failing to go to the facilities during the course of the seven month review/investigation of the Mitchell case, the OSIG missed a critical opportunity to hear from concerned staff that may have wanted desperately to share concerns of inadequate care and possibly abuse and/or neglect… Ms. Smith and the OSIG were left with only the facility/program’s version of what occurred, which in the Mitchell case, both the jail and NaphCare denies doing anything wrong.
I’ve written numerous blogs about Mitchell’s death and how state agencies responsible for investigating the incident have chosen not to investigate what happened to Mitchell inside the jail. In addition to the OSIG, the Department of Behavioral Heath and Developmental Services (DBHDS) (along with its parent, the Department of Health and Human Resources) and the disAbility Law Center either have not investigated the death or have claimed they lacked jurisdiction to examine what happened inside the jail. Mitchell’s family has filed a $60 million wrongful death suit.
Back To Lying To Me
The first allegation in the whistleblowers’ complaint is about a Freedom of Information request that I filed with the OSIG. Simply put, I asked why several reports had been removed from the OSIG’s webpage. The reports showed the state had been warned for several years that emergency room doctors were turning away psychotic patients because of a lack of hospital beds in Virginia. The practice had become so common that it had been given its own slang name: “streeting.”
Through a spokesperson, Jennings told me that the “streeting” reports had been removed from the website by the DBHDS not her office, and that a review of internal correspondence within the OSIG office had found no internal correspondence that would explain who gave the order to remove the reports.
I believed her.
Until….the whistleblowers attached three emails to their complaint that revealed internal correspondence inside the OSIG does, in fact, exist, and all three of those emails show that it was Jennings and not the DBHDS that decided to remove the critical “streeting” reports from the IG webpage. The whistleblowers wrote:
Whether by intent or not, the failure of a FOIA request to be properly investigated calls into question the office’s integrity and seriousness by which FOIA requests are taken. FOIA requests are one of the key mechanisms by which the public can gain access to agency business and ensure compliance with state policy and the Code of Virginia.
I’ve attached the whistleblowers’ 18-page complaint at the end of this blog so you can read their other charges in more detail.
A History of Questionable Practices
This is not the first time that the independence and credibility of the Inspector General’s Office has been questioned. Let’s go back in time.
On November 18, 2013, Virginia state Senator Creigh Deeds drove his mentally ill son, Austin “Gus” Deeds, to a mental health center only to be informed no local hospital beds were available. The father and son were sent home where Gus attacked his father, badly slashing Sen. Deeds’ face with a knife, before ending his own life.
G. Douglas Bevelacqua, who worked at the OSIG, had warned state officials in three reports issued 22 months before the Deeds stabbing that hospitals were routinely “streeting” patients. Bevelacqua decided to investigate the Deeds’ case and, in a draft of his Deeds’ report, he referred to his previous “streeting” warnings. He concluded that, in all likelihood, the Deeds’ tragedy could have been avoided if the DBHDS and its parent, the Department of Health and Human Resources had paid attention to his earlier warnings.
The release of Bevelacqua’s report would have embarrassed state mental health officials. It also would have shown that the state had been negligent. Bevelacqua’s boss at the OSIG demanded that he soften his draft report. Bevelacqua resigned rather than censoring it. He told reporters that his boss had accused him of being “too emotional,” “incendiary,” and “editorializing” in his findings. In his resignation letter to the governor, Bevelacqua accused higher-ups in the state government of interfering in his IG investigation to protect the state from a potential lawsuit.
After Bevelacqua resigned, the IG’s office released an edited version of the Deeds’ report. This version concluded that the DBDS and the Health and Human Services department, overseen by Secretary William A. Hazel Jr., hadn’t done anything improper.
Not long after that report was issued, investigative news reporter K. Brunell Evans, revealed that Secretary Hazel had telephoned the IG’s Office to complain about Bevelacqua while he was conducting his investigation. Inspector Generals are not supposed to be influenced by state officials, especially when they are conducting probes of their departments. Despite reporter Evans’ disclosure, no disciplinary action was taken against Secretary Hazel nor were any steps implemented to prohibit future contact between the OSIG and state officials when investigations were being conducted.
In May 2014, the Inspector General, who had been in charge during the Deeds’ investigation, left office and June Jennings was named as the state’s new Inspector General. She had previously served as a deputy state inspector general. When she took charge, the OSIG office was reorganized.
Virginia IG June Jennings
Fast forward to January 2016. That’s when Sen. Deeds filed a $6 million lawsuit against the state. In his suit, he referenced Bevelacqua’s “streeting” reports as evidence of state officials’ negligence. At that point, I decided to look back in the OSIG records and re-read Bevelacqua’s critical findings.
But when I checked the IG’s website, I discovered that all of Bevelacqua’s reports had been removed. Not just his “streeting” reports — every report that he had ever authored.
Curious, I asked the OSIG through a Freedom of Information Request to tell me who had decided to remove Bevelacqua’s reports from the OSIG website.
A spokesman replied in an email that the DBHDS had removed Bevelacqua’s reports. But when I contacted the DBHDS, I was told that Inspector General June Jennings had taken them down. This prompted a second FOIA to the OSIG. I asked it to provide me with “all internal emails and correspondence” about the decision to remove Bevelacqua’s reports to clear up this “conflict in statements.” I got this reply:
There are no records that discuss/order the removal of the above reference reports from the Office of the Inspector General public website…
Oops, that now appears to be untrue.
According to the whistleblowers’ complaint there are at least three internal emails in the OSIG’s files about the missing reports and all three show that it was Jennings, not the DBHDS, who decided to deep-six Bevelacqua’s “streeting” reports.
Context: Why This Matters
All of this could be passed off as a minor FOIA oversight, but when you factor in —
*The OSIG’s demand that Bevelacqua censor his Deeds’ report and his resignation.
*The OSIG’s fraternization with Secretary Hazel while Bevelacqua was investigating his agency.
*The removal of Bevelacqua’s critical reports from the IG website.
*The OSIG’s initial claim that it didn’t remove those reports and had no internal correspondence in its files.
*The whistleblowers’ revelation that the OSIG did remove the reports and did have internal correspondence that it should have released to me because of my FOIA.
*The whistleblowers’ claim that OSIG officials misled elected officials and misled other reporters.
*The OSIG’s failure to adequately investigate Jamycheal Mitchell’s death and attempt to shield the jail from criticism.
–well, it’s difficult to have much confidence in the OSIG’s credibility.
The OSIG was created to be an independent watchdog that relentlessly sniffs out and exposes malfeasance. It is not supposed to protect the state from embarrassment and possible lawsuits. It is not supposed to get cozy with state officials whose departments are under investigation. And it is not supposed to make it difficult for citizens to access reports that are embarrassing to mental health officials.
I’d like to believe the whistleblowers who have filed their complaint will be protected for exposing problems inside the OSIG, especially Cathy Hill, a long-time OSIG employee. I’d like to believe that the trio will be thanked for stepping forward. But given the questionable actions of Attorney General Mark Herring in the Mitchell investigation, you have to wonder if the state will turn on the messengers and thumb its nose at its citizens.
(The complaint accused the OSIG of misleading reporters Sarah Kleiner and Katherine B. Evans of The Richmond Times Dispatch. You can read their story here. )
Copy of Whistleblower’s Complaint
The Honorable Mark R. Herring
Attorney General Commonwealth of Virginia
202 North Ninth Street
Richmond, Virginia 23219
Re: Whistleblower Complaint about the Office of the State Inspector General (OSIG)
Dear Sir,
Pursuant to Va. Code 2.2-3009 et seq., we respectfully submit this letter to you to share our experience and concerns about the actions of the State Inspector General, June Jennings, and the OSIG Director of Behavioral Health and Developmental Services, Priscilla Smith. It is our belief that their actions violate both Virginia and federal law, and undermine public trust and the mission of the OSIG. Our concerns have grown to the degree that we feel we can no longer in good faith remain silent. We ask that your office investigate the violations of statute and policy identified below, and realign the OSIG with the principles and values under which it was formed.
AREAS OF CONCERN
The information in this complaint contains applicable statutes, standards, and/or policies, our identified experiences and concerns, followed by the most recent evidence available to validate our concerns and to show that these are current practices. Evidence material that is considered confidential has been redacted.
- VIOLATIONS REGARDING FOIA REQUESTS
APPLICABLE STATUTE OR STANDARD: Virginia Freedom of Information Act (FOIA)
- 2.2-3700.B. By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.
Definitions: “Public records” means all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. Records that are not prepared for or used in the transaction of public business are not public records.
- 2.2-3704. Public records to be open to inspection; procedure for requesting records and responding to request; charges; transfer of records for storage, etc.
- In the event a public body has transferred possession of public records to any entity, including but not limited to any other public body, for storage, maintenance, or archiving, the public body initiating the transfer of such records shall remain the custodian of such records for purposes of responding to requests for public records made pursuant to this chapter and shall be responsible for retrieving and supplying such public records to the requester. In the event a public body has transferred public records for storage, maintenance, or archiving and such transferring public body is no longer in existence, any public body that is a successor to the transferring public body shall be deemed the custodian of such records. In the event no successor entity exists, the entity in possession of the public records shall be deemed the custodian of the records for purposes of compliance with this chapter, and shall retrieve and supply such records to the requester. Nothing in this subsection shall be construed to apply to records transferred to the Library of Virginia for permanent archiving pursuant to the duties imposed by the Virginia Public Records Act (§ 42.1-76 et seq.). In accordance with § 42.1-79, the Library of Virginia shall be the custodian of such permanently archived records and shall be responsible for responding to requests for such records made pursuant to this chapter.
COMPLAINT A1: Ms. Jennings, in conjunction with the OSIG public relations officer, provided false information to a public figure in response to a FOIA request in violation of 2.2-3700 et seq.. By OSIG procedure, all FOIA responses are reviewed by the State Inspector General for accuracy prior to the response being forwarded to the FOIA requester, which would also have occurred in this case.
The office denied the existence of an email pertaining to a FOIA request; however, the evidence demonstrates that at least one email chain existed. A proper FOIA search would have revealed the email chain. Within the body of the email exchange, there are two other places where misstatements occurred: 1.) June Jennings in her capacity as the State Inspector General decommissioned the former OIG Reports, not DBHDS, as the requester was informed, and 2.) The reports were not decommissioned on July 1, 2012 as the response stated, but on or about June 27, 2014, as noted.
An additional violation occurred in July 2014 when Ms. Jennings indicated that the OIG documents held in the custody of our office would not be subject to FOIA request. The transfer of the OIG documents to the Library of Virginia for archiving would not occur until much later.
Whether by intent or not, the failure of a FOIA request to be properly investigated calls into question the office’s integrity and seriousness by which FOIA requests are taken. FOIA requests are one of the key mechanisms by which the public can gain access to agency business and ensure compliance with State policy and the Code of Virginia.
EVIDENCE: On February 29, 2016, Pete Earley forwarded the below FOIA request to the OSIG after being informed by the OSIG that DBHDS was the agency that decommissioned the OIG reports that were generated from 1999 to 2012, later refuted by DBHDS.
From: Pete Earley
Sent: Monday, February 29, 2016 3:35 PM
To: OSIG General Inquiry (OSIG)
Subject: FOIA Request/Attention OSIG FOIA-Responsible Officer
Dear FOIA Public Liaison:
This is a request under the Freedom of Information Act.
I request that a copy of documents containing the following information be provided to me:
All email communications that discuss/order the removal from the Inspector General’s public website of Inspector General reports authored by G. Douglas Bevelacqua during his tenure as an inspector general.
In order to help to determine my status to assess fees, you should know that I am an author/journalist and this request is being made as part of a news gathering operation for publication.
The maximum dollar amount that I am willing to pay for this request is $100.00. Please notify me if the fees will exceed that amount.
I request a waiver of all fees for this request. Disclosure of the requested information to me is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not in my commercial interest.
Specifically, on 1-18-16, I published a blog that stated the following:
“A spokesman for State Inspector General June Jennings told me in an email on Friday (1-15) that the missing IG reports were removed by the Department of Behavioral Health and Developmental Services (DBHDS), which oversees 16 state facilities and assists 40 local Community Service Boards in delivering mental health services. The DBHDS is a defendant in Deeds’ wrongful death lawsuit. An official at the DBHDS, however, told me Friday that it was Jennings’ office that decided to remove the reports from its website.”
Because of a conflict in statements, the public has a right to know which statement is correct.
Thank you for your sincere consideration of this request.
Sincerely,
Pete Earley
_________________
The OSIG responded to Mr. Earley’s request with the following email denying the existence of any emails or materials regarding the decommissioning of the OIG reports.
________________
From: “XXXXXX, XXXXX (OSIG)”
Subject: 2016-065 Freedom of Information Act Request
Date: March 3, 2016 at 4:55:34 PM EST
To: “Pete Earley”
Mr. Earley,
The Office of the State Inspector General (OSIG) received a Virginia Freedom of Information Act (FOIA) request for records from you dated March 1, 2016, made in accordance with Code of Virginia § 2.2-3700et seq., in which you stated:
“All email communications that discuss/order the removal from the Inspector General’s public website of Inspector General reports authored by G. Douglas Bevelacqua during his tenure as an inspector general.”
There are no records that discuss/order the removal of the above referenced reports from the Office of the Inspector General’s (OIG) public website. As previously communicated to you on January 14, these reports were not deleted. The former agency’s website was decommissioned after dissolution — on July 1, 2012 — of the Office of the Inspector General.
The reports are available upon request or by accessing them via the Library of Virginia’s Archival Web Collections:
- Governor Timothy Kaine Administration Collection, 2006-2010, and entering “Office of the Inspector General” in the search box.
- Governor Robert F. McDonnell Administration Collection, 2010-2014, and entering “Office of the Inspector General” in the search box.
This fulfills your FOIA request. Thank you for contacting OSIG.
Respectfully,
_________________
—–Original Message—–
From: Jennings, June (OSIG)
Sent: Friday, June 27, 2014 11:07 AM
To: XXXX, XXXXX (OSIG)
Subject: Re: Decommissioning of DBHDS IG Web Site
XXXXX
This was at my request. The old web site needs to be taken down as it is no longer in existence. We decided to archive the reports that are on the website for future reference for our new agency. They are not our reports and we will not be releasing them.
June
________________________
——Original Message——
From: XXXX, XXXXX (OSIG)
To: XXXXXXX XXXXXX
Cc: June W. Jennings
Subject: Re: Decommissioning of DBHDS IG Web Site
Sent: Jun 27, 2014 10:36 AM
This confuses me. Why are we in essence dismantling the work of a different agency? It seems contradictory to our plan to move the files to the State Library because they do not belong to us, but we become the “keepers” of the website materials. Are the past reports subject to FOIA requests? XXXXX
——Original Message——
From: XXXXXXX XXXXXX
To: XXXX, XXXXX (OSIG)
Subject: RE: Decommissioning of DBHDS IG Web Site
Sent: Jun 27, 2014 10:32 AM
Per June’s instructions, they are not being posted to the external web site. They are available to users of the COV network.
XXXXXXX
COMPLAINT A2: On or about June 13, 2016, during the absence of Ms. Smith, who typically assists with the FOIA requests relevant to behavioral health and developmental issues, one of the undersigned was asked to assist in her stead. The request by reporters from the Richmond Times Dispatch questioned whether OSIG received autopsies of deaths in correctional facilities, including jails, and the number of investigations that had resulted due to any information received.
This issue is significant because Ms. Jennings and Ms. Smith testified on April 19, 2016, to members of the Joint Subcommittee to Study Mental Health Services in the 21st Century that the office did not have jurisdiction over the jails. This fact was cited as one of the primary reasons why the Mitchell death was not reviewed from a medical or operational perspective, even though NaphCare, the jail contract agency, was a provider by definition in the state statute that mandates the duties and responsibilities of the SIG. (§ 2.2-309.1.B[1] Additional powers and duties; behavioral health and developmental services.)
The evidence of record is that the OSIG has been receiving autopsies of persons from correctional settings, both prisons and jails, since 2012, but there was no evidence that the office had investigated any of the deaths as a result of the receipt of the autopsies, even though the Code of Virginia mandates the office to review critical incidents, which certainly includes deaths.
After the requested FOIA information was provided by Ms. Jennings and the public relations officer, their shared verbal response to the undersigned was that OSIG could not be held accountable if the “medical examiner’s office was sending confidential information in error.” This statement is misleading since the office has received, reviewed, and catalogued autopsies for several years. In addition, any knowledge by OSIG that autopsy PHI was being received by our office in error should have been addressed with the Medical Examiner’s Office, which to our knowledge has never been communicated. To not stop the flow of PHI to OSIG demonstrates the lack of understanding of HIPAA by our office leadership. During FY 2016, Ms. Smith initiated the use of a monthly report for all deaths in facilities, including prisons and jails. We do not believe the autopsy reports are received in error as the SIG and the public relations officer claim. In fact, the office recently requested a preliminary autopsy from the Tidewater District Medical Examiner’s Office regarding a death in a jail, with the response received on the same date as the FOIA request was being crafted.
EVIDENCE: The first example shows that the office does in fact receive and Ms. Smith does in fact review autopsies from jails.
Wed 6/29/2016 11:21 AM
From: Smith, Priscilla (OSIG)
RE: Medical Examiner Western District – Judge, A
To: Carneal, Sherri (OSIG)
CC: Hill, Cathy (OSIG)
I don’t think I ever responded to this one. Jail death. NO follow up. Pls file.
From: XXXXXX, XXXXXX (OSIG)
Sent: Wednesday, April 06, 2016 2:13 PM
To: Smith, Priscilla (OSIG)
Subject: Medical Examiner Western District – Judge, A
__________________
The following example of evidence is a sample of the June 2016 updated autopsy log. Columns relevant to deaths in DBHDS facilities were deleted in order to preserve confidentiality and make the relevant issue legible for reading.
| Date Death Pronounced | Doc Facility | First Name | Last Name | Cause of Death | ME Office | Case Number | F/U | Notes on Follow up |
| XX, XX 2015 | Hampton Roads Regional Jail | XXXXXX XXXX | XXXXXXXX | Hanging | Tidewater District | X-XXX-XX | OSIG requested this on 05 20 16 as an inquiry | Sent to Priscilla on 05/31/16 and to Cathy on 5/24/16 |
| XX, XX 2015 | Pulaski Regional Jail | XXXX X. | XXXXX | Suicide by Hanging | Western | XXXX-X-XXXX | N | 3/6/2015 |
| XX, XX 2015 | Roanoke City Jail | XXXXXX X. | XXXX | Suicide (Asphyxia by hanging) | Western District | XXXX-X-XXXX | N | 12/29/2015 |
| XX, XX 2015 | Roanoke City Jail | XXXXXXX. | XXXXXX | Staphylococcal Sepsis due to right antecubital fossa abscess due to intravenous drug abuse | Western District | XXXX-X-XXXXX |
The final example is a long email chain that included the OSIG responses to a FOIA request in which one of the undersigned was asked to gather information for responding.
________________
Mon 6/13/2016 4:46 PM
From: XXXX, XXXXX (OSIG)
RE: 2016-102 FOIA Request for reports
TO: XXXXX, XXXXX (OSIG); Jennings, June (OSIG); Smith, Priscilla (OSIG); XXXX, XXXXX (OSIG)
CC: XXXXXXX XXXXXXXX (OSIG)
I also finished the review of autopsies to make sure that Dr. XXXXXX had not conducted a clinical autopsy of any deaths from 2012 to 2014. I was not able to locate any. XXXXX
From: XXXXXX, XXXXX (OSIG)
Sent: Monday, June 13, 2016 4:36 PM
To: XXXX, XXXXX (OSIG); Jennings, June (OSIG); Smith, Priscilla (OSIG); XXXX, XXXXX (OSIG)
Cc: XXXXXXXX, XXXXXXX (OSIG)
Subject: RE: 2016-102 FOIA Request for reports
Thanks for these. Based on the specific request, I think we are good with reports about situations that ONLY occurred in jail or prison custody
XXXXX
From: XXXX, XXXXX (OSIG)
Sent: Monday, June 13, 2016 4:19 PM
To: Jennings, June (OSIG); Smith, Priscilla (OSIG); XXXX, XXXXX (OSIG)
Cc: XXXXXX, XXXXX (OSIG); XXXXXXXX, XXXXXXX (OSIG)
Subject: RE: 2016-102 FOIA Request for reports
All -This is the first I was aware that there was a FOIA request, which is why I have not responded before. All of the deaths I have documented from 2012 on have been forwarded to XXXXXX. There was an additional death that had a preliminary investigation completed, but did not result in an investigation; XXXX. We also investigated two deaths with DBHDS, but DBHDS generated the reports. XXXXX
From: Jennings, June (OSIG)
Sent: Monday, June 13, 2016 1:12 PM
To: Smith, Priscilla (OSIG); XXXX, XXXXX (OSIG); XXXX, XXXXX (OSIG)
Cc: XXXXXX, XXXXX (OSIG); XXXXXXX, XXXXXXX (OSIG)
Subject: FW: 2016-102 FOIA Request for reports
Importance: High
BHDS Division:
XXXXX has requested several times for all death investigations conducted by your division. Please provide her this information at your earliest convenience.
June Jennings
From: XXXXXX, XXXXX (OSIG)
Sent: Monday, June 13, 2016 10:38 AM
To: Jennings, June (OSIG); Smith, Priscilla (OSIG); XXXX, XXXXX (OSIG)
Subject: 2016-102 FOIA Request for reports
Importance: High
All,
Although I’m still waiting to hear back from Q about whether we have the right to withhold behavioral health reports, I need to know if the XXXXXXXX report is the only one OSIG has that meets the criteria of the Richmond Times-Dispatch request for “copies of OSIG’s findings in any investigations into any deaths that occurred in state or local custody since the office’s inception, regardless of how or why the investigations were initiated.”
If there are more than the XXXXXXXX report that needs redacting, time will be necessary to pull the reports and do the redaction in Priscilla’s absence.
Tomorrow is day 5 from her original request date with questions and the request for records.
XXXXX
From: Kleiner, Sarah
Sent: Tuesday, June 07, 2016 1:26 PM
To: XXXXXX, XXXXX (OSIG)
Cc: Evans, Katherine B.
Subject: RE: request for reports
Hi XXXXX,
I wanted to touch base with you again about part of this email you sent responding to some of my questions. I had asked you for copies of investigative reports completed by OSIG for any of the individuals listed on the 2015 and 2016 tables showing deaths in local and regional jails. In your response, you said OSIG received autopsies for some of the people on the list, but I wasn’t asking for that information. I was asking if OSIG had investigated any of the deaths. As we know with Jamycheal Mitchell, investigations can be prompted by a complaints from the public, not necessarily an autopsy.
From your subsequent email to Katy, it sounds like OSIG has not, since its inception, investigated any deaths based on autopsies it received from OCME. So the mere fact that a death has occurred in state or local custody (jails, prisons, mental hospitals, csbs, etc.) does not prompt an OSIG investigation, correct? Why not? Aside from when the office receives complaints (as it did in the case of Jamycheal Mitchell), when does it investigate deaths?
We would like copies of OSIG’s findings in any investigations into any deaths that occurred in state or local custody since the office’s inception, regardless of how or why the investigations were initiated.
Please respond at your earliest convenience.
Sarah
Enterprise Reporter
RTD Newsroom
From: XXXXXX, XXXXX (OSIG)
Sent: Tuesday, May 24, 2016 5:03 PM
To: Kleiner, Sarah
Cc: Evans, Katherine B
Subject: RE: request for reports
Sarah,
The Office of the Chief Medical Examiner is responsible for sending autopsies to the Office of the State Inspector General (OSIG) per the Code of Virginia.
- 32.1-283. Investigation of deaths; obtaining consent to removal of organs, etc.; fees.
- Upon the death of any person from trauma, injury, violence, poisoning, accident, suicide or homicide, or suddenly when in apparent good health, or when unattended by a physician, or in jail, prison, other correctional institution or in police custody, or who is an individual receiving services in a state hospital or training center operated by the Department of Behavioral Health and Developmental Services, or suddenly as an apparent result of fire, or in any suspicious, unusual or unnatural manner, or the sudden death of any infant the Office of the Chief Medical Examiner shall be notified by the physician in attendance, hospital, law-enforcement officer, funeral director, or any other person having knowledge of such death. Good faith efforts shall be made by any person or institution having initial custody of the dead body to identify and to notify the next of kin of the decedent. Notification shall include informing the person presumed to be the next of kin that he has a right to have identification of the decedent confirmed without due delay and without being held financially responsible for any procedures performed for the purpose of the identification. Identity of the next of kin, if determined, shall be provided to the Office of the Chief Medical Examiner upon transfer of the dead body.
- Upon being notified of a death as provided in subsection A, the Office of the Chief Medical Examiner shall take charge of the dead body and the Chief Medical Examiner shall cause an investigation into the cause and manner of death to be made and a full report, which shall include written findings, to be prepared. In order to facilitate the investigation, the Office of the Chief Medical Examiner is authorized to inspect and copy the pertinent medical records of the decedent whose death is the subject of the investigation. Full directions as to the nature, character, and extent of the investigation to be made in such cases shall be furnished each medical examiner appointed pursuant to § 1-282by the Office of the Chief Medical Examiner, together with appropriate forms for the required reports and instructions for their use. The facilities and personnel of the Office of the Chief Medical Examiner shall be made available to any medical examiner investigating a death in accordance with this section. Reports and findings of the Office of the Chief Medical Examiner shall be confidential and shall not under any circumstance be disclosed or made available for discovery pursuant to a court subpoena or otherwise, except as provided in this chapter. Nothing in this subsection shall prohibit the Office of the Chief Medical Examiner from releasing the cause or manner of death or prohibit disclosure of reports or findings to the parties in a criminal case.
- A copy of each report pursuant to this section shall be delivered to the appropriate attorney for the Commonwealth and to the appropriate law-enforcement agency investigating the death. A copy of any such report regarding the death of a victim of a traffic accident shall be furnished upon request to the State Police and the Highway Safety Commission. In addition, a copy of any autopsy report concerning an individual receiving services in a state hospital or training center operated by the Department of Behavioral Health and Developmental Services shall be delivered to the Commissioner of Behavioral Health and Developmental Services and to the State Inspector General. A copy of any autopsy report concerning a prisoner committed to the custody of the Director of the Department of Corrections shall, upon request of the Director of the Department of Corrections, be delivered to the Director of the Department of Corrections. A copy of any autopsy report concerning a prisoner committed to any local correctional facility shall be delivered to the local sheriff or superintendent. Upon request, the Office of the Chief Medical Examiner shall release such autopsy report to the decedent’s attending physician and to the personal representative or executor of the decedent. At the discretion of the Chief Medical Examiner, an autopsy report may be released to the following persons in the following order of priority: (i) the spouse of the decedent, (ii) an adult son or daughter of the decedent, (iii) either parent of the decedent, (iv) an adult sibling of the decedent, (v) any other adult relative of the decedent in order of blood relationship, or (vi) any appropriate health facility quality assurance program.
Of the 2015 list you provided, OSIG received autopsy reports for the following individuals, although the Code of Virginia does not require OCME to send us autopsy reports of individuals incarcerated in a local jail:
- Name Removed, 1/10/201, SWVRJA-Duffield
- Name Removed, 1/19/2015, New River Valley Reg. Jail
- Name Removed, 4/3/2015 Hampton Roads Regional Jail
- Name Removed, 8/19/2015
- Name Removed,10/11/2015, Roanoke City Jail
- Name Removed, 10/23/2015, SWVRJA-Duffield
- Name Removed, 12/7/2015, Roanoke City Jail
- Name Removed, 12/13/2015, BRRHA-Amherst
Of those listed above — with the exception of Jamycheal Mitchell — no formal investigations were conducted by OSIG. OSIG’s investigation related to Mr. Mitchell was prompted by a complaint OSIG received concerning the time he had been awaiting transfer to Eastern State Hospital for court-ordered mental health treatment. OSIG’s jurisdiction was limited to policies and procedures related to the Department of Behavioral Health and Development Services and mental health care providers in the regional jail.
In keeping with § 32.1-283[C], the Office of the Chief Medical Examiner wasn’t required to provide OSIG with an autopsy report regarding XXXX XXXXXXX or the other people named on the 2015 list. The Office of the Chief Medical Examiner may have sent autopsy reports to other parties that are also listed:
- A copy of each report pursuant to this section shall be delivered to the appropriate attorney for the Commonwealth and to the appropriate law-enforcement agency investigating the death. A copy of any such report regarding the death of a victim of a traffic accident shall be furnished upon request to the State Police and the Highway Safety Commission. In addition, a copy of any autopsy report concerning an individual receiving services in a state hospital or training center operated by the Department of Behavioral Health and Developmental Services shall be delivered to the Commissioner of Behavioral Health and Developmental Services and to the State Inspector General. A copy of any autopsy report concerning a prisoner committed to the custody of the Director of the Department of Corrections shall, upon request of the Director of the Department of Corrections, be delivered to the Director of the Department of Corrections. A copy of any autopsy report concerning a prisoner committed to any local correctional facility shall be delivered to the local sheriff or superintendent. Upon request, the Office of the Chief Medical Examiner shall release such autopsy report to the decedent’s attending physician and to the personal representative or executor of the decedent. At the discretion of the Chief Medical Examiner, an autopsy report may be released to the following persons in the following order of priority: (i) the spouse of the decedent, (ii) an adult son or daughter of the decedent, (iii) either parent of the decedent, (iv) an adult sibling of the decedent, (v) any other adult relative of the decedent in order of blood relationship, or (vi) any appropriate health facility quality assurance program.
Regarding the 2016 list, OSIG hasn’t received any autopsy reports thus far.
I hope this information helps. I will be out of the office tomorrow, but will be back on Thursday.
XXXXX
Championing Better Government Performance
____________________
From: Kleiner, Sarah
Sent: Monday, May 23, 2016 4:42 PM
To: XXXXXX, XXXXX (OSIG)
Cc: Evans, Katherine B.
Subject: RE: request for reports
Thanks so much. If you can answer the first question about XXXX XXXXXXX in the next day or so, that’d be great. I understand the second request will take longer.
I really appreciate your help.
Sarah
Enterprise Reporter
RTD Newsroom
______________________
From: XXXXXX, XXXXX (OSIG)
Sent: Monday, May 23, 2016 4:41 PM
To: Kleiner, Sarah
Cc: Evans, Katherine B.
Subject: RE: request for reports
Sarah and Katy,
I will need time to look into this and get back with you.
XXXXX X XXXXXX
Championing Better Government Performance
___________________
From: Kleiner, Sarah
Sent: Monday, May 23, 2016 4:00 PM
To: XXXXXX, XXXXX (OSIG)
Cc: Evans, Katherine B.
Subject: request for reports
Hi XXXXX,
Hope you had a great weekend. First, I’d like to know if OSIG conducted an investigation into the death of XXXX XXXXXXX (DOB xx-xx-xx) after a brief incarceration at Richmond City Justice Center in XXXX and XXXXXX 2014. Can I please get a copy of that report if one was produced? If not, can you please explain why OSIG did not investigate?
Secondly, I’d like to get copies of investigative reports completed by OSIG for each of the people listed in the attached tables. If reports were not completed for any of the people listed, please explain why OSIG did not conduct an investigation.
Many thanks,
Sarah
Enterprise Reporter
RTD Newsroom
- MISLEADING STATEMENTS TO MEMBERS OF THE GENERAL ASSEMBLY
On April 19, 2016, Ms. Jennings and Ms. Smith provided testimony to the Joint Subcommittee Studying Mental Health Services in the Commonwealth in the 21st Century regarding the review/investigation by the OSIG into the death of J. Mitchell in the Hampton Roads Regional Jail. Both reported that the review was thoroughly completed and that Ms. Smith conducted an onsite visit to the jail, even though the report offered very little information regarding Mr. Mitchell’s experience while reportedly receiving behavioral health services through NaphCare, a provider of services by code definition and entity under OSIG jurisdiction. While the visit to the jail did occur, 80% of the review was completed as a “desk review”.
Ms. Smith initiated the use of “desk reviews” to be conducted by the contractors for complaints during FY 2016. As of this writing, the undersigned are aware of at least seven complaints of critical incidents that have been investigated in this fashion as directed by Ms. Smith between December 2015 and April 2016. We are aware of multiple other complaints that have been reviewed or investigated in this manner, primarily by Ms. Smith, but we do not have an accurate count. These reviews simply involve sitting at a desk reviewing documents copied and forwarded by the agency or facility under investigation, without going onsite to conduct a comprehensive investigation or to review original source documents. Interviews by phone with a limited number of “officials” do occur.
It has been our experience that the vast majority of public employees want to do the best job they can, including doing the “right thing” by speaking with OSIG reviewers or investigators while we are onsite. By failing to go to the facilities during the course of the seven month review/investigation of the Mitchell case, the OSIG missed a critical opportunity to hear from concerned staff that may have wanted desperately to share concerns of inadequate care and possibly abuse and/or neglect. Without the benefit of wide exposure to staff and source documents, Ms. Smith and the office were left with only the facility/program’s version of what occurred, which in the Mitchell case, both the jail and NaphCare denies doing anything wrong. The rest of the OSIG report is primarily framed around clerical errors and the investigative work of DBHDS. The failure to disclose the use of the “desk review” approach to the members of the Joint Subcommittee reflects the disingenuousness of the comments made by Ms. Jennings and Ms. Smith. The undersigned believe that the use of “desk reviews” do not meet professional standards regarding the completion of an investigation into a serious or critical incident, such as what occurred to Mr. Mitchell.
We believe that the lack of detail and specificity in the OSIG report on J. Mitchell is a direct result of this approach and a deliberate attempt to mislead the Joint Committee and the public of the investigation’s failings. A simple review of all other reports produced by OSIG in comparison to the Mitchell report clearly demonstrates that the lack of documentation of dates for when the onsite investigations occurred and the failure to list the positions of the people interviewed are inconsistent with standard office practice.
In addition, regardless of jurisdiction, as investigators of critical incidents with a combined 28 years of experience in work with an inspectors general office, there is no valid reason why the office did not address the degree of exposure to mental health and/or medical professionals Mr. Mitchell experienced. The number of medications prescribed and received by type (antipsychotic, antidepressant, etc.), the number of nursing and physician contacts, the gathering of collateral information from family, or even previous treatment providers would all point to the degree of thoroughness by which Mr. Mitchell’s condition and on-going status was treated while incarcerated. Yet the report contains only vague references to inadequate documentation by NaphCare and insufficient treatment for an identified medical condition (edema). No recommendations regarding improving the quality of care by contractual agents were offered.
- HIPAA VIOLATIONS
APPLICABLE STATUTE OR STANDARD: Health Information Portability and Accountability Act (HIPAA)
The Standards for Privacy of Individually Identifiable Health Information (Privacy Rule) established a set of national standards for the protection of certain health information. The U.S. Department of Health and Human Services (HHS) issued the Privacy Rule to implement the requirement of the Health Insurance Portability and Accountability Act of 1996. The Privacy Rule standards address the use and disclosure of individuals’ health information—called “protected health information” (PHI) by organizations subject to the Privacy Rule — called “covered entities,” as well as standards for individuals’ privacy rights to understand and control how their health information is used.
- 2.2-309.1[C] Additional powers and duties; behavioral health and developmental services mandates “All consumer information shall be maintained by the State Inspector General as confidential in the same manner as is required by the agency or provider from which the information was obtained.” This statute requires OSIG to manage PHI in the same manner as any “covered entity.”
COMPLAINT C1: During FY 2016, Ms. Smith instructed OSIG contractors to request medical records of individuals whose cases were under investigation to be sent directly to the contractors’ homes without first being received, dated, and/or catalogued in the Richmond office. Prior to this instruction, the OSIG BHDS Division required all paper documents to be received through the main office before being distributed to the reviewer/investigator. The stamping and scanning/copying of information before being given directly to the assigned reviewer/investigator served as an internal control over protecting HIPAA information. No such protection is in place with the approach initiated by Ms. Smith. This lack of control over protected health information (PHI) is in violation of HIPAA standards and inconsistent with the standards ascribed by internal auditors for which OSIG has oversight responsibilities. Neither Ms. Smith or Ms. Jennings have any knowledge of what information is being received or stored in the contractors’ homes; therefore, the OSIG cannot certify the office has retained proper control of and disposition of the information being asked to be forwarded by DBHDS. Once the information is returned to the Richmond office, it is not catalogued, properly labeled, or stored for future reference.
Since OSIG began in 2012, the office has never been in total compliance with HIPAA regulations, particularly with the security of paper documents. For example, in the course of the investigation of the critical incident in Bath County in 2013, Michael Morehart, the SIG at that time, and Ms. Jennings, then Deputy Inspector General, were warned by the Division Director, G. Douglas Bevelacqua, that access to the psychiatric record of the individual who assaulted a public figure and later committed suicide was accessible on “a need to know basis only” and that signatures were required by anyone accessing the record as an internal control of the protected health record. This precaution was not consistently followed, despite repeated warnings. In addition, that individual’s psychiatric record and other confidential PHI materials are available to anyone in the office with access to the OSIG storage room.
While concerns about HIPAA are just now being identified and addressed, there is no excuse for these violations of federal law and the Code of Virginia to be allowed to continue for almost four years. We firmly believe that the negative publicity the office has received following the death and investigation into Mr. Mitchell’s death has alarmed the leadership into engaging in the current efforts to correct these long-standing violations in practice.
EVIDENCE: The email below shows the concern of one of the undersigned who wanted to make sure that the information was being handled properly. The contractors reported that Ms. Smith assured them via phone that receiving the information in this fashion was totally acceptable. One contractor expressed concern when a package containing the majority of an individual’s medical record was left in the rural mailbox for an unspecified period of time.
Currently, PHI is stored in boxes in a storage room within the OSIG Richmond office that is accessible to all employees and contractors with a state ID key card.
From: XXXXX, XXX (OSIG)
Sent: Tuesday, March 08, 2016 10:33 AM
To: Smith, Priscilla (OSIG)
Subject: FW: XXXXXX State Hospital- Elopement
Priscilla – XXX XXXXXX has been delegated to be the contact for this case. I may not need the whole chart and can try to get what I need e-mailed. But, my concern would be having this chart etc. mailed to me via USPS. I’m assuming it would be certified and maybe mailed via Fed-Ex. Your thoughts?? I guess shipping records probably happens all the time. Another option would be to have it picked up or shipped to Richmond and then “Pony Expressed” to Charlottesville via XXXX or Greenville via XXXXX and I could pick it up. Your call. It’s probably just the old mother hen in me over reacting. – XXX
From: XXXXXX, XXX (DBHDS)
Sent: Tuesday, March 08, 2016 9:28 AM
To: XXXXX,XXX (OSIG)
Subject: XXXXXX State Hospital- Elopement
As stated in my voicemail message, we are doing the RCA on this elopement tomorrow from 1:30-3:30. The clinical review has already been conducted, and we will be looking at other related processes.
As for his chart, FRP packet, tx plans, hx, etc. we can arrange to get you copies of these items once we decide what the most secure way will be.
If you are unable to get me in my office, feel free to call my cell phone.
D: CONFLICT OF INTEREST/INDEPENDENCE
APPLICABLE STATUTE OR STANDARD: Association of Inspectors General Principles and Quality Standards for Investigations
- Personal Impairments (Independence)
There are circumstances in which the Inspector General and OIG staff cannot be impartial because their personal situations may create actual or perceived conflicts of interest. In such situations, the OIG staff who are affected by these circumstances should disqualify themselves from an OIG review and allow the work to continue without them. Personal impairments may include, but are not limited to, the following:
- Official, professional, personal, or financial relationships that might appear to lead the OIG to limit the extent of the work, to limit disclosure, or to alter the outcome of the work.
- Preconceived ideas toward activities, individuals, groups, organizations, objectives, or particular programs that could bias the outcome of the work.
- Previous involvement, especially recent involvement, in a decision making or management capacity that could affect the work.
- Biases that may affect the objectivity of the OIG staff member in the performance work.
- Conduct of a review by an individual who had previously performed work subject to review.
OSIG Policy and Procedure Code of Ethics #121Effective September 2016 refers to the need for independence and integrity in performing professional duties based on the authority of the Code of Virginia § 2.2-309 et seq.
COMPLAINT D1: While the undersigned are aware of multiple instances in which Ms. Smith has not functioned in an ethical and professional manner consistent with the standards of the Association of Inspectors General and OSIG policies and procedures regarding the Code of Ethics that govern the work of the office, we are providing the following examples as evidence of a pattern of violations.
EVIDENCE: 1.) On or about November 22 and 23, 2015, Ms. Smith participated in an unannounced inspection at Eastern State Hospital, where she had been employed less than a year before. Her involvement in this review had the potential to result in challenges to the findings based on presumed bias and was, by definition, a conflict of interest.
2.) Ms. Smith injected information that she was aware of from her previous employment in a DBHDS facility into current report(s) even though that information was not discovered during the inspection/investigation process. (Evidentiary materials reflecting this have been inexplicitly removed from one of the undersigned’s work papers.)
3.) Ms. Smith often makes decisions about whether complaints are investigated depending on comments by her friends or former colleagues either in the community and/or the facility. For example: During March 2016, the OSIG hotline regarding issues of patient safety and inadequate staffing at one of the state facilities. This complaint also contained concerns regarding facility leadership. As noted, Ms. Smith opted to delay a preliminary investigation into the complaint based on the word of a person she “trusts.” As you will discover in the email chain, Ms. Smith indicates that the information being provided about the person in a leadership position who is identified in the complaint is not “new.” Even after indicating she is aware of problems, she opts not to investigate based on the word of an employee she knows at the facility.
From: Smith, Priscilla (OSIG)
Sent: Friday, March 11, 2016 11:27 AM
To: XXXXX, XXX (OSIG)
Subject: RE: XXXXXXXXXX XXXXXXX
Hi XXX.
Let’s hold off on this for now. I spoke with someone at the facility whom I trust and I think we can let this sit for a while and keep our finger on the pulse. I got a balanced report and it seems XXXXX is doing some good things there but maybe just over-employed in this type of position. She is just interim so we can see how successful DBHDS is in hiring a qualified Exec.
Thanks so much.
Priscilla
___________________
From: XXXXX, XXX (OSIG)
Sent: Friday, March 11, 2016 8:32 AM
To: Smith, Priscilla (OSIG)
Subject: RE: XXXXXXXXX XXXXXXXXXX
Will do. So, you do want me to go ahead and pull together some questions and send your way?
I will start working on the elopement data today. I have received lots of stuff from XXXXXX but waiting on information from XXXX and XXX.
Hope your day goes well.
______________________
From: Smith, Priscilla (OSIG)
Sent: Thursday, March 10, 2016 12:48 PM
To: XXXXX, XXX (OSIG)
Subject: RE: XXXXXXXX XXXXXXXX
That’s a great idea. Want to write up a list of ten questions?
From: XXXXX, XXX (OSIG)
Sent: Thursday, March 10, 2016 12:47 PM
To: Smith, Priscilla (OSIG)
Subject: RE: XXXXXXXX XXXXXXXXX XXXXXXXX
Just a thought….what about a survey monkey for XXXXX staff? Not sure about the time frame to develop the questions and set it up on the site. But, might be the quickest way to get feedback from all shifts about what’s really going on. Plus, they might feel more free to express on a site. XXXXX and I interviewed many staff the last time we were there. Not very happy campers!
_____________________
From: Smith, Priscilla (OSIG)
Sent: Thursday, March 10, 2016 9:20 AM
To: XXXXX, XXX (OSIG)
Subject: FW: XXXXXXXXX XXXXXXX
Importance: High
FYI-
XXXXXXX and I are going to decide what to do about this. We may need a road trip up there. None of what is reported about XXXXX is new.
_____________________
From: XXXXXXX XXXXXXX (OSIG)
Sent: Thursday, March 10, 2016 9:14 AM
To: (email address removed)
Subject: RE: XXXXXX XXXXXXXX XXXXX
Importance: High
Thank you for contacting the State Fraud, Waste and Abuse Hotline regarding patient safety and under staffing at the XXXXXXXXX XXXXXXXX XXXXX XXXXXXXX. In order for our office to perform an effective investigation we would need to have specific times and dates of the incidents mentioned for patient safety and the number of employees the facility under staffed is on each shift. We would like to know who issued the lasted joint commission report and when it was filed. Also what is the name of the new facility director?
The more detailed information that you can provide the more effective an investigation that can be performed.
XXXXXXX XXXXXXXX
4.) Ms. Smith shared emails with BHDS division staff on May 16, 2016, that were generated by the DBHDS Interim Commissioner and the DBHDS Associate Commissioner for Behavioral Health, (dated May 11, 2016, and pertained to Incentive Funds and the Commonwealth Center for Children and Adolescents), which were forwarded to her by a community person. The leadership at DBHDS did not know that she was provided with this information and that she encourages her “trusted” contacts to divulge DBHDS business, without consideration for the biases or potential agendas of the individuals sending the information. To our knowledge no other state agency is subject to the tactics used by Ms. Smith by any other OSIG division. Ms. Smith’s approach undermines the integrity of our office and potentially compromises the work of DBHDS’ leadership and the agency’s strategic plans, as well as the work of the Secretary of Health and Human Resources, Dr. William Hazel.
We have attached signed statements that the collective information contained in this letter is provided in good faith and true to the best of our knowledge.
Ann White, OSIG Consultant
William Thomas, OSIG Consultant
Cathy Hill, OSIG Staff Member
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