Latonia Congress is being held at the Chittenden Regional Correctional Facility in South Burlington. File photo
The Vermont Department of Corrections and the prison system’s private medical provider discriminated against an inmate by taking almost two years to approve a new hearing test and replace her hearing aids, and then providing her only one, according to the Vermont Human Rights Commission.
A VHRC investigation found DOC and Centurion Health Care had shown “deliberate indifference’’ when they denied requests by Latonia Congress for new batteries, a new hearing exam and failed to return her hearing aids for nine months when they were sent out for repair.
The investigator called the case “peculiar” because Centurion’s predecessor had agreed to provide Congress with hearing aids and then later, after Congress said they weren’t working, Centurion took the position she didn’t need any hearing aids and was “functional in the facility” without them.
“While it may be DOC’s contention that Ms. Congress received the same services as other inmates despite her lack of hearing aids, the fact is that without her hearing aids — which were deemed appropriate by medical experts and the DOC at one point —- Ms. Congress had to exert more effort, more focus, compensate for her hearing loss and devise more strategies than her non-disabled peers to access the same benefits and services,” according to the investigation.
The Human Rights Commission voted 4-1 to find “reasonable grounds” that DOC and Centurion had illegally discriminated against Congress, 39, who was found guilty in 2011 of second-degree murder and is due to be paroled from the Chittenden Regional Correctional Facility in October. Her original 20-years-to-life sentence was reduced to 10 years by Judge Michael Kupersmith in 2015.
In “reasonable grounds” cases, the commission and the subjects attempt to reach a settlement that may include a monetary penalty. If no settlement is reached in six months, the commission can decide to file a lawsuit.
Corrections Commissioner Mike Touchette and Centurion’s Vermont medical director, Dr. Steven Fisher, declined comment on the case. The company, which serves prisoners in 15 states, has faced other complaints about medical care, including allegations of negligence in the death of a Vermont addict in solitary confinement.
According to the human rights organization’s investigation, Congress suffered hearing impairment after being struck in the head by her husband several years before she went to jail in 2009 after being arrested for stabbing and killing her niece.
She first complained of hearing problems in 2014. In early 2015, she was diagnosed with “mild to moderate” hearing loss and was fitted with hearing aids in each ear with approval from DOC and Correct Care Solutions, the medical provider at the time.
The next year, Congress told staff with Centurion, the new provider, that she needed either new batteries or a new test after reporting continued difficulty hearing.
Centurion denied the requests because “medical staff found her to be functional within the facility’ without hearing aids.” The investigation found Congress stopped wearing the hearing aids because “the echo caused discomfort and pain when she wore them.”
In late 2016, Congress filed another complaint. Fisher said it was possible Congress’ hearing aids failed and ordered they be examined. The investigation found it took nine months for the hearing aids to be returned from a Vermont prison where the person who was supposed to look at them had already left. After that, the hearing aids were sent out again twice for testing to other locations.
In 2017, Disability Rights of Vermont got involved in her case. A DOC official told the organization that Fisher “has re-reviewed the request and has come to the same conclusion (that Ms. Congress does not meet the criteria for hearing aids). My understanding of the ADA (Americans with Disabilities Act) is that auxiliary aids shall be furnished to afford individuals with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity within DOC. Does DRVT have any indication that (Latonia Congress) is unable to participate in a service, program, or activity? We have reviewed Ms. Congress’s case several times … and DOC-HSD has not received info to indicate that Ms. Congress is unable to participate.”
Disability Rights made another request and in December 2017, Congress received approval for another hearing test. According to the report, it took three months for the test to happen. The results found her hearing had gotten worse.
The investigation found the fitting of one hearing aid happened more quickly after prison staff reported Congress was having difficulty hearing commands and other staff reported she had difficulty hearing when on the phone with her family.
The new audiology exam she received in March 2018 found her hearing “had deteriorated from mild to moderately severe hearing loss, to moderate to severe high frequency hearing loss in both ears, slightly more in the left ear.”
It took another month for Congress to receive one hearing aid.
“This case is peculiar in that CCS, the former health care provider, and DOC, gave Ms. Congress bilateral hearing aids at a time when her hearing loss was less severe. By the time her hearing aids began to fail in 2016, Centurion had taken over and it essentially disregarded her hearing loss and determined she did not have a disability. DOC then pivoted from its original position of supporting the provision of auxiliary aids and recognizing she had a disability,” the investigation found.
The commission investigation said it did not address whether providing only one hearing aid violated Congress’ rights because the issue was not raised in the complaint. However, the report quoted a hearing aid specialist who disagreed with that decision to issue only one.
Read the story on VTDigger here: Human rights panel accuses Corrections Department of bias over delayed care.