Legislate prison health-care case

In 2009, the Arizona Legislature passed a law requiring the Department of Corrections to contract out health care for prisoners.

Earlier this month, Marc Stern, an “expert” appointed by federal District Court Judge Roslyn Silver, recommended that she vaporize the law. In essence, substituting Stern’s policy preference for that of the elected representatives of the taxpayers of Arizona, who are paying for the service.

What in the name of federalism is going on?

The U.S. Supreme Court has held that inadequate prison health care can constitute “cruel and unusual punishment” under the Eighth Amendment to the U.S. Constitution.

That has given license to inmate advocates to rush to court over alleged deficiencies in health care. And for federal judges to micromanage the health care delivery system in prisons and jails.

And that’s what is happening in Arizona.

In 2014, the state entered into a settlement of a lawsuit over prison health care. It was inanely prescriptive, with 103 detailed “performance measures” to be tracked in 10 DOC facilities.

The plaintiffs, represented in part by the American Civil Liberties Union, are back in court complaining that the state is not in compliance with the settlement and asking the judge to swing the hammer. The state argues that it is largely in compliance.

Silver appointed Stern, a former prison system medical director and now an academic, to look into the matter and, from a subsequent order she issued based upon it, thinks highly of his report.

I don’t question his assessment of the medical issues he addressed. But his policy recommendations are logically flawed and ideologically biased.

In one section, Stern writes that: “In my opinion, failure to fix the problems identified by the Court and identified in this report stems from a lack of will, rather than a lack of know-how on the part of the health care vendor.”

But, later, Stern contends that the principal problem is a lack of money. Using Arizona’s Medicaid program as a benchmark, he asserts that the system is $74 million a year underfunded.

If there’s not enough dough, no amount of “will” can overcome it. And how can “will” be evaluated, and determined to be lacking, if there’s not enough dough?

Stern is obviously ideologically opposed to contracting out prison health care services. His simplistic analysis is, eliminate the profit margin and, hesto presto, you have more money to spend on health care.

However, his benchmark, Arizona’s Medicaid program, also contracts with private health care providers. According to Stern’s belief that profit is just a lineitem expense that can be excised without any effect on performance, the state should be running the health-care program for the poor, rather than contracting it out. And the Arizona Department of Transportation should be building highways rather than hiring private companies to do so.

Stern’s analysis is, in part, unintentionally comical. One of the reasons offered for DOC to take over is that prison health care “require(s) an organization to be flexible and nimble.” Flexibility and nimbleness aren’t characteristics ordinarily associated with government.

And certainly not the Arizona Department of Corrections, which hasn’t managed to master the task of having cell locks that work consistently. Perhaps we should wait until it gets that right before putting it directly in charge of arranging kidney transplants.

Silver was wrong to appoint an “expert” with such an obvious bias against the method of providing prison health care the elected representatives of Arizona have chosen.

The judge has asked the parties to tell her how they want to proceed to ensure compliance. But if Stern is right that the principal problem is money, there’s no answer to be found in Silver’s court.

Getting more money requires the Arizona Legislature to appropriate it. And no federal judge has yet asserted the right to instruct individual legislators how to vote on a specific piece of legislation. It’s the only shred of federalism left hanging.

There may be inadequacies in the state’s prison health care system. But the state is not purposely denying prisoners health care to punish them.

The case for more money belongs before the Legislature, not a federal judge. The money is there. And to make it happen requires only one Republican member of the House, or two in the Senate, to insist that it be included in the next state budget.

If Democrats ever learned how to play budget politics smarter, they could make it happen as well.