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AG Neronha: RI hospitals mishandled vaccine rollout, but no laws broken

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PROVIDENCE, R.I. (WPRI) — R.I. Attorney General Peter Neronha on Tuesday released a much-anticipated report examining how Rhode Island hospitals distributed vaccines in the early days of the state’s rollout, concluding they didn’t violate any laws or violations but “should have acted differently.”

The attorney general, in his role as the state’s health care advocate, in January launched a review of vaccine rollout protocols at the state’s largest hospital groups: Lifespan and Care New England. He acted after it emerged that the not-for-profit hospital systems had made shots available to administrators and board members who didn’t interact with patients.

“I think it was a significant error in judgement,” Neronha said Tuesday about their actions.

Vaccine supply was scant in January and unavailable to anyone outside of hospital workers and nursing home residents, whom the state determined were at the highest risk of contracting the virus.

The inquiry — which Neronha’s aides have insisted wasn’t an investigation — was launched to explore whether any improper distribution or legal violations occurred. Ultimately, the attorney general found none, concluding instead the R.I. Department of Health hadn’t established clear guidelines for how the vaccine should be distributed. As a result, the hospitals didn’t violate any laws, rules or regulations.

Nonetheless, Neronha criticized the hospitals for their actions.

“This office strongly believes that Lifespan and CNE should have acted differently,” Neronha wrote in a letter to the Lifespan president and CEO Dr. Timothy Babineau, Care New England president and CEO Dr. James Fanale and state Health Director Dr. Nicole Alexander-Scott.

“This office recognizes that speed, and a need to avoid waste and spoliation of vaccines were competing interests here, but we are not persuaded, based on the evidence that we have reviewed, that these competing concerns justified the decision to vaccinate board members,” he added.

As part of his review, Neronha found the Health Department did not initially provide the hospitals with specific guidance regarding prioritization, essentially giving them carte blanche over who should receive doses. The state agency also didn’t establish what constitutes “hospital staff,” which left the hospitals to decide on their own, he added.

Neronha wrote the state’s wide discretion prevented his office from concluding the hospitals violated Health Department guidance or directives regarding prioritization.

“Nor is there a basis for a finding that Lifespan or CNE violated any Rhode Island law or regulation,” Neronha wrote. “Indeed, like many things related to the COVID-19 pandemic, this issue of ‘line-jumping’ is a novel one, and one which Rhode Island law, based on the facts here, at present does not reach.”

The two hospital groups established three-tiered systems that prioritized hospital workers based on their roles, according to the report. People with direct interaction with high-risk patients were placed at the top of the list, while low-risk jobs — including volunteer board positions — were in the lowest tiers.

The hospitals argued they followed Health Department guidance and didn’t offer vaccines to anyone outside of their tiered groups. Care New England told the attorney general the state had not started offering vaccines to patient or community practices at the time. So, the hospital “concluded that the focus remained on those who supported the clinical operations of CNE, which in its view appropriately included board members,” according to the report.

Seventeen volunteer members of the Care New England Board of Directors and its affiliate board choose to receive a vaccination.

“Care New England is pleased the Office of Rhode Island Attorney General found that Care New England was not in violation of any directives, policies or laws in connection with its decision to vaccinate board members,” Care New England spokesperson Raina Smith wrote in an email. “During the duration of the COVID-19 pandemic, Care New England has worked diligently to vaccinate its workforce, as well as patients, in order to provide the highest quality of care to everyone in our community.”

Lifespan, meanwhile, sought state approval to vaccinate its lowest tier group on January 4, but didn’t disclose board members were part of that group, according to the report.

In an email to the state, the hospital indicated the lowest-tiered group included “remote workers who are very much essential to the safe and effective operations of the hospital.” A few days later, Lifespan internally said it would move ahead with offering vaccine to “anyone with a Lifespan badge, which expressly included board members,” according to the report.

By Jan. 18, after news came out that Lifespan board members had received vaccinations, the Health Department sent a letter to Lifespan, “asking it to direct its remaining vaccine to community providers and suspend vaccinating its own workforce in its lowest tier,” according to the report.

Vaccines were offered to about 110 volunteer board members, although Lifespan argued some of those people would have qualified in other first- and second-tiered groups. Yet it was “unable to report how many doses were administered to the different categories of individuals in the different tiers.”

In response to Neronha’s letter, Lifespan CEO Babineau issued a statement saying, “We have been committed to the equitable and efficient distribution of vaccines from the very beginning of the statewide vaccination program.”

“Lifespan has played an important role for the state in combating this pandemic for more than a year,” Babineau added. “Our intent and actions have always been to work in accordance with the guidelines received from the Rhode Island Department of Health. That remains the case to this day. We acknowledge, along with the Attorney General, the importance of public perception and holding ourselves to the very highest of standards. We remain dedicated to do all we can to bring the victims of COVID-19 back to health, to get vaccines into arms, and to stop the spread of this virus.”

While the attorney general’s review found no violations of laws, rules or regulations, Neronha offered some advice to both the Health Department and all of its vaccination partners. For the state, he called on health officials to make their guidance as clear as possible, “so that those entrusted with aspects of the vaccine distribution mission know exactly what is expected of them.”

Health Department spokesperson Joseph Wendelken on Tuesday responded to the report, saying “We are in the process of reviewing the attorney general’s findings now.”

Separately, Health Medical Director Dr. James McDonald told Target 12, “We’ve learned from that experience. I think as we give out future guidance we will have to put out more specificity.”

For vaccination partners, Neronha wrote that it was their responsibility to “hold themselves to the highest standards,” adhere to regulatory guidance, be transparent about priorities and avoid any waste of vaccines.

“When in doubt, ask for clearer guidance,” he added.

The guidance, he said, could help the state restore some of the public’s trust that was lost when the hospitals decided to prioritize their board members who didn’t interact with patients ahead of others in the community.

“This unfortunate episode highlighted the consequences of straying too far from those public health principles that have guided vaccine distribution in Rhode Island: vaccinating those who are at greatest risk of spreading, contracting, and dying from COVID-19,” Neronha wrote. “By offering vaccinations to all of their board members, irrespective of any individualized criteria applicable to Rhode Islanders generally, at a time when Rhode Islanders were gravely concerned about their health and that of their loved ones, Lifespan and CNE erred, and significantly so.”

Eli Sherman (esherman@wpri.com) is an investigative reporter for WPRI 12. Connect with him on Twitter and on Facebook.

Anita Baffoni contributed to this story.

Copyright 2021 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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