NMCD Guards and Staff: Legal Claims for Lack of Preparation and Response to COVID-19

Question: Do New Mexico Corrections Department (NMCD) correctional guards and staff have possible legal claims for lack of preparation and response to COVID-19/Coronavirus?

Answer: Perhaps but it depends on the whether the measures below were taken by NMCD and its medical provider.

Summary: Guards and staff will not be able to sue NMCD or the State of New Mexico due to the very worker unfriendly New Mexico Workers Compensation Act. But they may have claims against the medical contractor, Wexford Health Sources, Inc. (Wexford) based upon the terms of the contract entered between NMCD and Wexford in October 2019, PROFESSIONAL SERVICES CONTRACT # 20-770-1200-0043. The contractual duties of Wexford for infectious disease prevention and control are set forth below.

NMCD’s Complete Lack of Preparation and Response to COVID-19

There is no question that NMCD completely failed to prepare for the COVID-19 despite the fact that it was clear that it was coming for months before they took any action at all. This is according to their own COVID-19 webpage which reads:

“On January 30, 2020, the International Health Regulations Emergency Committee of the World Health Organization declared the outbreak a “public health emergency of international concern” (PHEIC). On January 31, 2020, Health and Human Services Secretary Alex M. Azar II declared a public health emergency (PHE) for the United States to aid the nation’s healthcare community responding to COVID-19.”

NMCD Still Not Taking Sufficient Action

Our own investigation of NMCD’s response to COVID-19 has found that NMCD remains unprepared and have taken very little meaningful action. Collins & Collins, P.C. has addressed the lack of response through a pile of Tort Claims Notices going out to NMCD with undoubtedly more to come. Our Tort Claims Notices are very specific about what actions have not been taken still as COVID-19 plows through the nation. We need not address those now.

Although we have written these Tort Claims Notices on behalf of our clients, each one specifically addresses the risks to guards and staff, along with their families and communities as they return home each day. Assuming the COVID-19 plays out across the country and prisons specifically as many medical and scientific experts expect, guards and staff will be hit hard as will their families and communities just as our Tort Claims Notices suggested.

Do Guards and Staff Have Claims for COVID-19 Failures

Again, assuming COVID-19 does play out as expected, the question will arise for many guards and staff as to whether they have any legal rights resulting from the gross negligence of NMCD and its medical provider to prepare or respond to COVID-19.

To get to that answer, the focus should be on the medical contractor rather than NMCD. The guards and staff will be limited by law to workers compensation claims against NMCD no matter how bad they are harmed. However, this is not the case with regard to the medical provider.

PROFESSIONAL SERVICES CONTRACT (PSC) will determine the rights of guards and staff to bring claims against Wexford.

Wexford’s Duty to NMCD Guards and Staff

Most guards and staff probably have little if any knowledge of the contract between Wexford and NMCD. I think they might be surprised to hear that Wexford actually has contractual health duties toward guards and staff. The contract, the PSC states:

“The contractor will be expected to provide general and ordinary occupational health care services for NMCD employees who work in the prisons.”

Wexford’s Contractual Obligation for Infectious Disease

Any guard or staff member will want to know whether Wexford fulfilled the contractual obligations set forth below. Fortunately for guards and staff, unlike inmates, they have first-hand knowledge that will not be discounted because of their status. The guards and staff should be able to read the contractual terms below and know whether or not Wexford breached its duties. And unlike inmates, guards and staff if they do not already know the answers can get those answers fairly easily by talking with other employees and staff whereas inmates must battle for every scrap of paper taking months and even years to get the same information through litigation.

The language below is direct from PROFESSIONAL SERVICES CONTRACT # 20-770-1200-0043, Infectious Disease section. Only the what I see is relevant is set forth as the Infectious Disease section is pretty lengthy with many provisions that do not apply to Coronavirus. Read it carefully and decide for yourself whether Wexford breached its duties regarding infectious disease prevention and control:

“The contractor shall implement an infection prevention and control program, which includes concurrent surveillance of patients and staff, preventive services, treatment and reporting of infectious diseases and staff training in accordance with local and state laws. The program shall be in compliance with Centers for Disease Control and Prevention (CDC) guidelines, Occupational Safety and Health Administration (OSHA) regulations, NMDOH regulations and reporting requirements and NMCD policies and procedures.

The contractor shall establish an effective infectious disease program which will meet the needs of patients with HIV, TB, chronic hepatitis, and other infectious diseases, in accordance with evidence-based guidelines and expert organization recommendations (e.g., CDC, ACIP, IDSA, SHEA). These programs are to be consistent with any NMCD specific programs, procedures, and protocols for HIV, TB, and hepatitis or protocols established by arrangement with other experts (e.g., Project ECHO).

The contractor shall perform any investigation deemed necessary by NMCD for prevention of the spread and/or location of a source of an infectious process.

The contractor shall provide educational in-service presentations related to infection control to the contractor’s staff, the inmate population and NMCD security staff.

The contractor shall have a plan in place to respond to any potential infectious disease outbreak such as methicillin-resistant Staphylococcus aureus (MRSA), norovirus, influenza, hepatitis A, varicella, measles, pertussis and other common communicable diseases. Any suspected outbreak must be reported immediately to the NMCD HSA and NMDOH as required by state reporting requirements.

The contractor shall establish a monthly infection control program at each facility that includes the infection control nurse, the medical director, health services administrator, nursing director, dentist or dental assistant and representatives from NMDOH, as necessary.

The contractor is responsible for the infection control program at each facility. Responsibility for the infection control program shall be coordinated by an infection control nurse at each facility who will complete and forward all reports of communicable diseases required by NMDOH, maintain statistics required by the NMCD, and generate the monthly safety and sanitation report of the medical unit.

The contractor shall administer a bloodborne pathogen control program that includes:

• The proper methods of handling, storage and disposal of biohazardous waste including sharps, needles, syringes and other material used in the treatment of inmates.
• The provision of hepatitis B vaccine to all new employees who cannot otherwise prove previous immunity within 10 working days of being assigned to a job with direct inmate contact.
• The contractor shall pay for hepatitis B vaccines for NMCD staff who cannot otherwise prove previous immunity.
• The provision of personal protection equipment and devices required for patient care.

The contractor will ensure that all medical, dental, and laboratory equipment and instruments are properly decontaminated.

The contractor is responsible for the pre-assignment medical clearance assessment required for food handlers by NMCD policy.

The contractor’s staff will participate in safety and sanitation inspections required by AC A standards and NMCD policy in accordance with the facility’s established procedure and schedule.

The facility HSA will verify that the medical unit is clean and sanitary, and measures are taken to ensure the medical unit is occupationally and environmentally safe.”

Contact an Attorney

Collins & Collins, P.C. represents many inmates in claims against NMCD and its prior medical provider. Although we have not yet had an opportunity to help NMCD guards and staff, our view has always been that guards and staff are in much the same position as the inmates in terms of the dangers they face while in NMCD facilities. COVID-19 really brings this fact home. Guards and staff should be protected by NMCD. Wexford arguably has duties to protect them from Coronavirus which they may or may not have failed to do.

There is a lot of press right now, some generated by our firm, regarding the safety of inmates. Guards and staff should not be lost in this discussion. They have the same rights to health and safety as do we all. It is basic human right applying to guards, staff and inmates alike.

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