Federal regulators are investigating a New Mexico hospital accused of racial profiling. This comes as hospital staff said administrators appeared to hide documents and discouraged cooperation with an initial state inquiry.
This article was first published on Monday, June 22, 2020 in ProPublica.
By Bryant Furlow, New Mexico In Depth
ALBUQUERQUE, N.M. — Federal regulators are ramping up scrutiny of a prominent women’s hospital here after clinicians’ allegations that Native Americans had been racially profiled for extra COVID-19 screening, leading to the temporary separation of some mothers from their newborns.
The U.S. Centers for Medicare and Medicaid Services will refer findings from state investigators about a violation of patient rights at Lovelace Women’s Hospital to the U.S. Department of Health and Human Services’ Office for Civil Rights, state officials said. The state Department of Health declined to specify details of the violations it had found.
The HHS Office for Civil Rights enforces federal laws banning discrimination in the provision of medical care and investigates violations of patient privacy rights.
“The allegations against Lovelace Women’s Hospital are very serious,” said New Mexico Department of Health Secretary Kathyleen Kunkel. The department “continues to be concerned that individuals will not access the medical care they need and are entitled to due to fear or mistrust.”
The state and federal actions were announced after an investigation by New Mexico In Depth and ProPublica found that Lovelace had a secret policy of designating Native American women as under investigation for coronavirus based on their appearance and a list of ZIP codes, regardless of their symptoms. The ZIP code list, known informally as the “Pueblos List,” a reference to New Mexico’s 19 Pueblo tribes, contained ZIP codes that corresponded with tribal reservations, some of which have suffered high rates of COVID-19 outbreaks. Other tribes on the list, however, have had few cases. Ethicists have described the practice as a case of racial profiling.
The decision to elevate the investigation comes as hospital workers told New Mexico In Depth and ProPublica that the hospital appeared to hide documents and discourage cooperation with state investigators.
Hospital employees said documents were removed from nursing stations, including COVID-19 screening and treatment protocols. In one internal communication viewed by the news organizations, a hospital official reminded workers that they did not need to talk to the investigators and provided a short script as a sample response.
“They told us that DOH might be calling to ask us questions about the policy, and they told us we don’t have to talk to them,” one clinician said. “They suggested we could just not answer the phone.”
Kunkel, the state’s highest-ranking public health official, said such an instruction would be a potential violation of the hospital’s operating agreement with CMS, as would removing documents with relevant information from inspectors’ review. She promised the Health Department would assist federal investigators in any ongoing reviews.
It was not clear on Monday whether state inspectors obtained access to any documents employees said had been moved. The state’s report to CMS was not immediately released, and a state official did not immediately confirm that the hospital had given investigators all of the documents they sought. Once the hospital is notified of the findings, it will have 14 days to respond.
A hospital spokeswoman said Friday that the hospital had not yet received notification of the results of the inspection. She declined to respond to repeated requests for comment regarding accusations that hospital administrators had attempted to impede the investigation.
“We continue to modify screening and testing protocols based on” guidelines from the Health Department and the U.S. Centers for Disease Control and Prevention “as this pandemic continues and as the country continues to learn more about this disease,” hospital spokeswoman Whitney Marquez said in a statement.
The allegations of profiling have angered New Mexican political leaders and Native American activists. Gov. Michelle Lujan Grisham demanded an investigation into the hospital after the article by New Mexico In Depth and ProPublica.
The hospital’s practices were “significant, awful allegations and, if true, a disgusting and unforgivable violation of patient rights,” Lujan Grisham wrote on Twitter on June 13.
Malia Luarkie, a birth and breastfeeding advocate for the reproductive justice organization Indigenous Women Rising, said the policy was detrimental to the health of Native Americans.
“The first minutes and days of birth are important to a baby’s development and to bonding with their parent(s),” Luarkie said in a press release. “This is an atrocious and racist move by Lovelace Women’s Hospital.”
Seven clinicians who worked at Lovelace described the now-abandoned policy to single out pregnant Native Americans as “persons under investigation” for COVID-19 testing. Pregnant women who gave birth before the return of test results were separated from their infants as a precaution, two clinicians told the news organizations.
A spokeswoman acknowledged that the hospital used geographic regions as a criterion for additional COVID-19 testing but did not respond to questions about the use of a list of ZIP codes linked to Native American tribes. Hospital policy requires that expectant mothers being investigated for COVID-19 infection be separated from their newborns. But the spokeswoman said mothers were educated about the pros and cons for the baby and given a choice to separate. Some patients opted to keep their babies with them, she said.
It is unclear how the hospital’s ZIP code list was developed. The Navajo Nation and several Pueblo tribes in New Mexico have recorded some of the highest per capita rates of COVID-19 infection in the nation. But most ZIP codes and associated tribes on the list have had relatively few positive COVID-19 cases and several fell outside of state-designated hot spots.
In April, the hospital’s policy called for screening anyone from New Mexico Indian Pueblos and reservations, according to internal communications and documents newly obtained by the news organizations.
“We will now be screening all patients who are from the Indian reservations,” stated an internal communication from late April reviewed by New Mexico In Depth and ProPublica. Clinicians should look at patients’ home addresses rather than asking them if they live on an Indian reservation in order to “avoid them feeling singled out,” that communication stated.
An April 22 staff communication to Lovelace Women’s Hospital providers similarly identified “Native American Reservation/Pueblo/Navajo Nation” as one of a set of three “high-risk classifications” that would trigger COVID-19 testing upon admission. Other high-risk classifications noted in the communication included patients undergoing dialysis and those who reside in congregate living facilities like nursing homes. People classified as under investigation were to be assigned to “appropriate COVID-19 isolation,” the communication said.
The hospital has not publicly explained why it did not simply test all patients for COVID-19. Two other major hospitals in Albuquerque, the University of New Mexico and Presbyterian, said they did not carry out any screening based on ZIP codes.
In an internal memo to staff on June 16, Lovelace CEO Sheri Milone defended the hospital’s actions. She acknowledged that the hospital had screened people based on whether they lived in “geographic hot spots,” among other risk criteria. She said such screening was needed to triage the hospital’s limited supply of COVID-19 tests to populations most at risk for the coronavirus.
She said the screening policies resulted in COVID-19 tests for 15 expectant mothers “from a variety of ethnic backgrounds.” Two women were separated from their infants at birth as a precaution since results had not yet come back. One of those women was Native American, Milone wrote. The hospital spokeswoman declined on Monday afternoon to say how many of the 15 mothers were Native American or to answer other questions.
One clinician who initially told the news organizations that six Native American women had been separated from their infants as a result of the policy is now no longer willing to quantify an exact number of separations but says that the practice did occur.
“We were not made aware of a patient, family member, staff member, or clinician objecting to the screening and testing process,” Milone’s letter said.
Bryant Furlow is a reporter for New Mexico In Depth.
Update, June 23, 2020: New Mexico state health officials said that Lovelace Women’s Hospital had provided all documents requested by state inspectors.
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