Brattleboro Retreat faced regulatory violations over drug overdose as lawmakers approved plan for mental health system
by Anne Galloway vtdigger.org As the Shumlin administration pressed lawmakers to pass sweeping reforms to the state’s mental health system that included giving Brattleboro Retreat, a private psychiatric hospital, a substantial role in the care of state patients, a death occurred that led to an investigation of the Retreat.
A young man from Middlebury who was undergoing psychiatric treatment at the Brattleboro Retreat died of a drug overdose in January after he snatched methadone off a nurse’s cart at the facility.
While one state agency pushed for approval of the decentralized community mental health plan another was investigating the circumstances that led to the death of 29-year-old Jared Alexander Fitzpatrick while he was being treated for substance abuse and other psychiatric problems at the Retreat. Fitzpatrick was not in state custody.
As a result of the probe, the Retreat lost its “deemed status,” which places the facility under state instead of federal jurisdiction, in early February. The facility is still undergoing intensive reviews from state and federal regulators. The Retreat was required to create a corrective action plan. If the facility does not follow the steps outlined in the plan, and does not satisfy regulatory requirements, it could lose federal funding for certain patients.
Lawmakers who took testimony from Retreat officials two weeks after Fitzpatrick’s death were not informed about the nature of the incident, which led to a state and federal investigation at the Retreat and a subsequent decision to revoke the hospital’s “deemed status.”
Patrick Flood, the commissioner of the Vermont Department of Mental Health, said the Retreat informed him of the death immediately. He was also kept abreast of the investigations by the Centers for Medicare and Medicaid Services, the medical examiner and the Vermont Division of Protection and Licensing that occurred from Jan. 24 through March 21.
What is in question, Rep. Anne Donahue says, is the Retreat’s willingness to communicate with the public about mistakes.
Key lawmakers interviewed for this story, including members of the House leadership team, said they didn’t remember Retreat officials or members of the Shumlin administration informing them about Fitzpatrick’s overdose, the regulatory investigations or the Retreat’s revocation of “deemed status.”
The problems at the Retreat occurred just weeks before the Legislature approved plans to rely on the psychiatric facility as part of its complex plan to replace the Vermont State Hospital with a new decentralized community mental health system.
The state had to reinvent the system of care for patients with severe mental illnesses after the hospital in Waterbury, which provided care for up to 54 patients, was closed because of heavy flood damage from Tropical Storm Irene on Aug. 28. In the interim, private facilities, including the Retreat and community hospitals around the state, have taken in patients who formerly would have received care at the Waterbury facility.
In March, lawmakers agreed to the Shumlin administration’s plan which was contingent on using two private hospitals — the Retreat, a psychiatric hospital, and Rutland Regional Medical Center, a community hospital — on a permanent basis to serve patients in southern Vermont. A much smaller new state hospital with 25 beds is planned in central Vermont. The Retreat would host a 14-bed unit and the Rutland Regional Medical Center would create a six-bed unit for psychiatric patients.
The Legislature passed H.630, which was fast-tracked by the Shumlin administration, in late February and the governor signed the enabling legislation into law on April 5.
The state is now in the process of finalizing substantial government contracts with private hospitals, including the Retreat and Rutland Regional Medical Center. The Retreat has been awarded $5.3 million and Rutland $6.3 million for renovations to their facilities. Contracts for services provided to state patients will be finalized over the next several weeks, according to Flood.
In the debate leading up to the passage of the bill, legislators, aware of the new demands on the state for oversight once a private facility provides state services, raised questions about the public-private partnership, taxpayer funding for private facilities and the need to assure quality of care standards are met. Shumlin administration officials assured lawmakers that the Legislature, which had been responsible for appropriating funds for the Vermont State Hospital, would continue to play a role in overseeing the new community mental health system.
On Feb. 8, Rob Simpson, the head of the Brattleboro Retreat, testified in the Senate Health and Welfare Committee that a death had occurred. He did not disclose that a patient had died of a methadone overdose, or that this incident had triggered an investigation by the Department of Disabilities, Aging and Independent Living and that the facility had violated two Conditions of Participation under Centers for Medicaid and Medicare rules.
Though Fitzpatrick was not a ward of the state — he was a private patient — lawmakers and advocates say his death raises questions about the reliability of care offered at the Retreat and the ability of the Legislature to adequately monitor private hospital facilities receiving taxpayer dollars.
Rep. Anne Donahue, R-Northfield, said the bill would have moved forward even if the Legislature had known about the probe, but she said lawmakers would have likely included more explicit statutory direction about how private facilities handle public disclosures.
Donahue was especially disappointed in Flood’s reaction.
“When things happen that aren’t good and you don’t step forward, you make them seem worse,” Donahue said. “Because of the happenstance of the timing, it makes it look even worse. That’s why I think it was a serious oversight, given the fact of this legislation was specifically about a contract with this hospital. He wasn’t sharing information he knew.”
Lawmakers should have been informed, she said, because they were making a decision about a large investment of state money.
In her view, however, the Retreat has made an enormous effort to rectify problems with policy and protocol, and the hospital’s ability to provide quality care, she said, is not in question.
What is in question, Donahue says, is the Retreat’s willingness to communicate with the public about mistakes.
“Bad things happen everywhere all the time, and we address them and work on them and correct them. That’s part of life. It doesn’t mean that a place or a thing totally lacks quality or is not competent,” Donahue said. “We’re all human. The Retreat’s internal response was very good, but a very open and transparent process is crucial.”
A tragedy at the Retreat
Jared Alexander Fitzpatrick grew up in a loving family in the affluent Addison County town of Middlebury. His father is an artist and his mother is a teacher. He has two siblings. Though he was not married, he lived with his girlfriend and their young son. Friends describe him as a loving, but troubled young man.
A classmate described Fitzpatrick as a magnetic and kind person with lots of friends. He liked to party and skateboard. He didn’t have an easy time in school, and apparently had problems with drugs and alcohol. His picture didn’t appear in the school yearbook in either his junior or senior year. Nor was he listed as a participant in activities at Middlebury Union High School where he graduated in 2000.
Fitzpatrick’s occupation is listed as house painter. His drug and alcohol problems continued after high school, and his family tried to help him. In 2011, he was pulled over twice for driving under the influence, the second time the Vermont State Police charged him with a DUI and a criminal citation for Driving with a License Suspended.
The circumstances that led up to his admission to the Brattleboro Retreat are unclear, but on Jan. 18 he was placed at the psychiatric facility for treatment of suicidal thoughts and alcohol detox. The next day he took the dose of methadone that mixed with psychotropic drugs already in his system proved fatal.
How Fitzpatrick got hold of 110 milligrams of methadone in tablet and wafer form is spelled out in documents from the Vermont Department of Disabilities, Aging, and Independent Living’s Division of Licensing and Protection.
According to the division’s investigation, Fitzpatrick grabbed a dose of methadone that had been prepared for another patient from a nurse’s cart that was located behind a Dutch door. The dose was discovered missing 15 minutes later when the nurse went to dispense it to the intended patient. The staff put the ward in lockdown for contraband search. All the patients were gathered in the community space, and nurses took urine samples. Other staff searched the rooms. Meanwhile, against protocol for lockdowns, a nurse continued to dispense drugs, including a dose of methadone to the patient whose medication had been taken by Fitzpatrick.
Fitzpatrick was searched and he admitted he had taken the methadone. He began to show signs of an overdose — his pupils were constricted, his speech slurred, he was lethargic and his breathing slowed.
Just before noon he was sent to the Brattleboro Memorial Hospital emergency room. Three and a half hours later he was back at the Retreat where a doctor gave him the methadone overdose antidote Narcan, but by 5 p.m. he had been returned to the hospital because he continued to “exhibit signs of an overdose,” according to the investigation documents. This time the doctor sent Fitzpatrick back asking Brattleboro Memorial to keep him until he recovered, according to Retreat officials. Fitzpatrick was kept for a 24-hour “acute care stay” in the Intensive Care Unit “for monitoring and treatment of methadone overdose,” Licensing and Protection reported.
According to the Vermont Medical Examiner’s certificate of death, he died as the result of accidental “acute mixed intoxication.”
Fitzpatrick was sent back to the Retreat on Jan. 20, but Brattleboro Memorial Hospital did not send along two crucial pieces of information: The patient’s blood oxygen levels were low and he had told medical personnel at the hospital he had sleep apnea.
The Retreat nurse who cared for him on the evening of Jan. 20 and into the night of Jan. 21 wasn’t aware of his low oxygen levels and sleep apnea condition, and as a result, didn’t check his vital signs or oxygen status. She did, however, give him ibuprofen for a severe sore throat.
Between 4:15 and 5 a.m., Fitzpatrick began yelling in his sleep. The nurse, who had checked on him four times during that interval, found him unresponsive at 5:43 a.m. Hospital personnel tried to resuscitate him and at 6:20 a.m. he was sent to the emergency room at Brattleboro Memorial Hospital. There Fitzpatrick was pronounced dead at 6:45 a.m.
He was three days short of his 30th birthday.
According to the Vermont Medical Examiner’s certificate of death, he died as the result of accidental “acute mixed intoxication.” The examiner reported that in addition to the tablet and wafer forms of methadone, Fitzgerald was taking drugs for depression, anxiety, an antihistamine, a muscle relaxant and a drug for schizophrenia or bipolar mania contributed to his death.
Typically, methadone for heroin addiction relief is given in liquid doses; in pill form it is often used as a painkiller, according to Barbara Cimaglio, deputy commissioner for alcohol and drug abuse programs for the Vermont Department of Health. The drug can stay in the body for 24 hours, she said. If it is mixed with other drugs, particularly anti-depressants, it can “potentiate” the other substances and create a very risky situation for patients.
Cimaglio declined to comment on the Fitzpatrick case.
Several substance abuse counselors interviewed for this story said the amount Fitzpatrick ingested, 110 milligrams, was not an excessive dose, but in combination with other drugs could have had an deleterious effect.
The state conducted a probe on Jan. 24 into the events leading up to his death. On Jan. 26, the state found that the Retreat had violated “conditions of participation” under federal rules. The investigation determined that nurses did not properly assess Fitzpatrick’s health condition in the hours before he died, and that medications were improperly secured as drugs were dispensed to patients.
Retreat loses deemed status
Bratteboro Retreat is a private psychiatric hospital for patients with mental health problems. Originally founded in 1834 as an asylum for the insane, the historic facility provides treatment for patients with problems with “depression, addiction to alcohol or other drugs, bipolar disorder or difficulties related to anxiety, PTSD or co-occurring diagnosis disorder,” according to its website.
The Retreat has 151 inpatient and residential beds. It offers programs for children and adolescents, adults, uniformed service members, substance abuse problems and patients with “sexual orientation issues.”
Rob Simpson, president and CEO of the Retreat, says the facility has borne the brunt of the statewide placements for post-Irene patients. Since Tropical Storm Irene destroyed the Vermont State Hospital, the Retreat has provided treatment for more than 100 patients. It has offered 14 beds for state patients with an average length of stay of 38 days, nearly four times longer than the average length of stay for private patients. In addition, the Retreat has handled all of the forensic evaluations in the state. Though the Retreat is hiring more employees to handle the additional workload, Simpson said Irene has taken a toll on staff.
Simpson, who has been working in the psychiatric field for 40 years, said patients come to the Retreat with multiple psychiatric problems, addictions and complex medical conditions.
“There are many things to monitor, to be aware of,” Simpson said. “That’s why we’ve increased the medical capability in our hospital. These are lethal illnesses — people tend not to think that … but the brain is the most complex organ in the body. When it is ill and other parts of body are ill as well, it’s a complex medical arena.”
In January, when Fitzpatrick died, Simpson said the Retreat was reassessing all of the units and was looking to increase the nursing staff, physician assistants, medical clinicians and supervisors on the units. Over the last five years, as the acuity level of patients coming into the hospital rose, the Retreat has hired 200 new employees, bringing the total to more than 685.
On Jan. 24, just three days after Fitzpatrick’s death, representatives from the Division of Licensing and Protection, an enforcement and investigatory arm of the state that also acts on behalf of the Centers for Medicare and Medicaid Services, arrived to figure out what happened.
The investigators spent two days at the facility and determined that the Retreat was not in compliance with the “conditions for participation” for nursing services and pharmacy services. The division alleged that the staff failed “to conduct ongoing health status assessments when there is an identified change in patient condition.”
Licensing and Protection reported that the Retreat failed to “ensure safe and secure storage of all drugs” in accordance with protocols and that pharmacy staff didn’t provide information for safe medication use.
In the worst-case scenario, if the Retreat fails to fully comply with its corrective action plan by June 19, the hospital could lose its agreement with CMS and federal Medicare and Medicaid funding.
In response, Brattleboro Retreat filed a plan of correction on March 6 to address the “deficiencies” in nursing and pharmacy services, according to documents from the state. Simpson revised the hospital’s policies and procedures and held “educational sessions” with the staff. New protocols for health assessments, code blue responses and medication dispensing were also put into place. New locks were installed in the medication rooms.
Even before the plan was filed, the Retreat had taken steps to address the division’s concerns. On Feb. 2, the vice president of patient care services, Vareen O’Keefe, resigned and Debra Lucey, RN, who has 25 years of experience in nursing and administration, took her place. The registered nurse who administered methadone during the lockdown was disciplined. The Retreat immediately hired another nurse for the Tyler 1 and Tyler 2 units, where Fitzpatrick was treated, and began recruiting for eight new positions on Jan. 24, three days after Fitzpatrick’s death. By Jan. 27, the hospital had hired five new staff.
Licensing and Protection then completed a full survey of the Retreat on March 21, and cited other “deficiencies” and determined it was no longer violating conditions of participation.
In an interview, Keeler said the Retreat had had its “deemed status” revoked, which removes CMS jurisdiction and places the facility under state agency jurisdiction. If the Retreat doesn’t show improvements, it could run further afoul of Centers for Medicare and Medicaid Service rules.
Hospitals voluntarily seek accreditation from organization such as the joint commission. The commissions set standards that CMS “deems” to be equivalent to its Medicare requirements, according to Richard Shaw, the CMS manager for the certification and enforcement branch.
If there is a complaint, CMS can authorize a survey agency, in this case the state Division of Licensing and Protection, to conduct an investigation to see if the facility is continuing to meet Medicare requirements, Shaw said.
In the worst-case scenario, if the Retreat fails to fully comply with its corrective action plan by June 19, the hospital could lose its agreement with CMS and federal Medicare and Medicaid funding.
CMS officials said decertification is rare and they don’t anticipate a problem with restoring “deemed status” to the facility. In the six New England states, about 150 hospital surveys are conducted each year, Shaw said. Of those, a couple dozen have their status revoked in a given year.
Keeler said acute care medical hospitals in Vermont sometimes fail to meet federal standards and lose their “deemed status.” Some of the facilities the division surveys haven’t had their deemed status removed in 10 years; others have had to submit corrective action steps once every two or three years.The Vermont State Hospital found itself in a similar situation in 2003 and again in 2005 after state investigators looked at the circumstances around several suicides that occurred at the Waterbury facility. The Centers for Medicaid and Medicare eventually decertified the hospital, and as a result, the facility lost access to $8 million to $11 million a year in annual federal funding for an eight-year period.
In the case of the state hospital, there were systemic problems with the facility itself that exacerbated the situation with the federal government, officials say.
Keeler explained that when the division conducts a full survey on behalf of CMS it is obliged to look beyond a singular incident. “We are in there not just looking at what is the cause of the one incident that has drawn us in but also what are other overall situations going on,” Keeler said. “We don’t just look at the one case, we look at other cases and what the facility may or may not have done prior to the incident. We are looking at the whole system.”
The Division of Licensing and Protection will be making another unannounced visit to the Retreat in the coming weeks to determine if the hospital has taken steps to ensure adequate patient care.
When asked about the Retreat’s revoked “deemed status,” Simpson insisted he had not received a letter to that effect. “It was not taken away,” Simpson said. “That is not correct. I’ve never heard that; we do not have any evidence of that.” After a pause he said: “No, it’s not true.”
There was a letter, however, dated Feb. 6 from CMS citing deficiencies at the Retreat provided by state officials. The memo stated that effective Jan. 26, the jurisdiction for the hospital was transferred to the Division of Licensing and Protection.
According to Keeler, the transfer of authority to the state means the facility’s “deemed status” was revoked as a result of the Brattleboro Retreat’s noncompliance with two “conditions of participation” — nursing and pharmaceutical services.
The Brattleboro Memorial Hospital was also investigated by the Division of Licensing and Protection at the same time the Retreat probe took place. Keeler was not willing to confirm or deny whether the investigation took place as the result of Fitzpatrick’s death.
When Simpson testified in Senate Health and Welfare on Feb. 8 that there had been two recent deaths at the hospital, he referred to the cardiac arrest of a 26-year-old man in December and mentioned a second death in January, but declined to give specifics, even though at that point the medical examiner’s office had issued a certificate of death in the Fitpatrick case.
The Statehouse had been rife with rumors about the two deaths at the Retreat and lawmakers tried to get to the bottom of what was really going on, but to no avail. When legislators asked what steps the Retreat was taking to review the circumstances of the January death, the following exchange took place.
“We’ve had CMS come in, we have not heard back from the medical examiner with any clarity on this death,” Simpson told lawmakers. “It’s unclear …”
Sen. Kevin MullIn interrupted: “But it was from natural causes, right?”
Simpson said,“Well, we don’t know, the medical examiner’s preliminary report is that, indeterminate cause of death.”
When asked whether there would be a review of the cause of death, the CEO went on to say that CMS looked at “everything we did.” Simpson said there were “no standard or conditions of participation violations, suggestions for improvement.”
Sen. Claire Ayer asked: “Did you tell us everything you wanted to tell us about that event?”
Simpson’s reply? “Yes.”
Yet, the medical examiner’s office had preliminarily determined the cause two weeks prior. On Jan. 23, Steven Shapiro, M.D., noted the pending cause of Fitzpatrick’s death as an overdose of prescribed and non-prescribed medications.
Simpson made no mention of the investigation by state and federal regulators and told lawmakers that there was no violation of the Conditions of Participation. In fact, the Retreat had violated two.
Lawmakers unaware of problems at Retreat
Several lawmakers who serve on committees that oversee the state’s mental health system are alarmed that the Retreat, which had a lobbying presence in the Statehouse for the legislative session, didn’t notify them of the cause of Fitzpatrick’s death or the state and federal investigation into the Retreat’s deficiencies, plan of correction and loss of deemed status.
The Shumlin administration was aware of the probe, but didn’t inform the Legislature.
Patrick Flood, commissioner of the Vermont Department of Mental Health, knew what was going on — Simpson called him the day of Fitzpatrick’s death and kept him apprised of the investigations — and he said he thought the Retreat had handled the case appropriately.
“Rob Simpson called me and was very open about what occurred, that they had had the medical examiner investigate, the police investigate and notified licensing and protection,” Flood said. “All the steps were followed.”
Key lawmakers, however, weren’t aware of the overdose until well after the legislative session was over.
At the same time the Division of Licensing and Protection was investigating the Brattleboro Retreat, the governor and officials from another branch of the Agency of Human Services, the Vermont Department of Mental Health was pressuring legislators to adopt the most radical reforms to Vermont’s mental health system in decades.
Under the reform plan, the state will effectively outsource psychiatric services that were formerly provided by a single, publicly owned state hospital to private hospitals and other facilities. The Brattleboro Retreat will have the largest role to play in the new system.
From the beginning, lawmakers were concerned about their ability to oversee the quality of care provided by private facilities that would receive taxpayer dollars to care for state patients. In committee meetings, legislators grilled Shumlin administration officials about the oversight question. They asked how private facilities would report incidents to the state. They wanted to know how lawmakers would ensure that patients would be receiving adequate care and whether money would be spent wisely in a privately run system.
Ironically, given the concerns about proper levels of oversight, the Legislature approved the reforms without knowing that the Retreat was in trouble with state and federal regulators.
The proposal was voted on by the House in early February, and by the end of March the regionalized system of care was a done deal. The bill was signed into law on April 5.
In Rep. Anne Donahue’s view, the overdose was not necessarily a gross indication of quality of care issues at the Retreat. She said the Retreat’s rapid response was encouraging. Her main concern is transparency. The hospital, in her view, should have let lawmakers know what was happening.
“The question is how they dealt with the Legislature,” Donahue said.
Rep. Ann Pugh, D-South Burlington, chair of the House Human Services Committee, said, “I am very disappointed in the information that I got from the Retreat because I asked very specifically for information early on.”
Likewise, Sen. Ayer said Retreat officials didn’t come back to her committee once they had more information. “I don’t recall follow-up on it,” Ayer said. “My assumption was things were OK since I didn’t hear anything.”
She was surprised that the Brattleboro Retreat didn’t broach the subject with the Legislature, but she said it’s not clear where the line should be drawn between what lawmakers should know and what private hospitals should be compelled to divulge.
“Brattleboro Retreat is a private institution, and we’re helping them by investing in their facilities to help take care of people in state custody,” Ayer said. “We’re paying for it, and there’s a certain amount of information that needs to go back and forth.”
Ayer said it’s the standard of care she’s most worried about. “I can tell you one of the main issues that we wanted to be very clear about was that in extending our state resources to private institutions like Brattleboro Retreat and Rutland Regional Medical Center the standard of care would be the same or better as what we had at the state hospital.”
When asked at a Vermont Press Association meeting whether private hospitals should undergo the same level of scrutiny as state-owned facilities, Shumlin said no.
“I’d have to know a little bit more about where you’re going with that,” Shumlin said. “I would like to see every organization that provides services to the state of Vermont be as transparent as possible, but I do understand the difference between public and private sector, and as an example, when we contract with Pike Industries to pave our roads, I don’t expect Pike Industries to be totally transparent about their finances as we would expect a public entity to be, so I guess the answer is, frankly, no.”
Commissioner Flood said he didn’t think the governor understood all the ins and outs of hospital transparency requirements. The commissioner said private hospitals would be faced with a heightened standard of reporting “than whatever we do with Pike Industries.”
“He might not be as schooled on this as we might like to him be,” Flood said.
Flood said he would be working with the Retreat and lawmakers to develop a disclosure protocol for incidents at private facilities.
“Going forward, we need a protocol,” Flood said. “There are legitimate concerns about how much information to provide and still protect privacy. That just needs clarity. We have to have the right amount of openness and transparency so people do have trust.”