Prison health care trial set to begin
This story was reported and published in partnership with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for their newsletter, or follow The Marshall Project on Facebook or Twitter.
In 2017, Walter Jordan wrote a memo to a federal judge from the Arizona State Prison Complex in Florence. “Notice of Impending Death,” it said in a shaky hand.
Jordan told the judge that Arizona corrections officials and Corizon Health, the state prison system’s private health care contractor at that time, delayed treating his cancer for so long that he would be “lucky to be alive for 30 days.” Jordan, 67, had a common form of skin cancer that is rarely life-threatening if caught early, but said he experienced memory loss and intense pain from botched care. Other men in his unit were also denied treatment, he wrote, “all falling, yelling, screaming of pain.” Jordan was dead eight days later. Reviewing his medical records later, Dr. Todd Wilcox, a physician hired by lawyers for the state’s prisoners, agreed that Jordan’s death was likely preventable. Corizon’s treatment of Jordan’s “excruciating needless pain,” was “the opposite of how cancer pain should be managed,” he said.
Wilcox will take the stand in a landmark trial that begins Monday in Phoenix, the latest chapter in an almost decade-long struggle to determine whether Arizona’s prisoners are getting the basic health care they are entitled to under the law.
The trial pits Arizona against the people held in its prisons, who argue in a class-action lawsuit that the medical services they receive are so poor, they constitute cruel and unusual punishment. The state’s current health care contractor, Centurion, is the latest in a string of companies that have failed to pass muster with the courts.
None of the companies have been named as defendants in the lawsuit, because, the claimants say, the state is ultimately responsible for their care. The suit was originally filed in 2012, shortly before private contractors took over Arizona’s prison medical services. But whether privatization can provide decent care is one of the biggest issues looming over the trial.
The Arizona Department of Corrections declined to comment on pending litigation. Centurion of Arizona and Corizon, based in Tennessee, did not respond to multiple requests for comment.
Arizona is one of around two dozen states that use a private, for-profit contractor to provide prison medical care, and almost all have been sued. But a trial is rare, as most states settle to avoid this kind of exhaustive public scrutiny.
Health care in Arizona prisons is “grossly inadequate,” the prisoners have said in court papers, with crisis-level understaffing, delayed or denied treatments, and unreliable access to medication.
Attorneys have chronicled a man who died after his swollen legs split open, the wounds weeping pus and swarmed by flies; a man with mental illness who was in such distress that he chewed off parts of his fingers; a man who entered prison with a small bump on his face that went untreated and became a disfiguring baseball-sized tumor; and several people denied access to regular mental health care who later killed themselves.
The trial could spell the end of privatized care in Arizona prisons — or, in a more extreme outcome, the end of Arizona's control over its prison health care entirely. U.S. District Court Judge Roslyn Silver could appoint an outside official to run it who would answer to her, or she could impose additional financial sanctions against the state. Ultimately, Silver will have to decide: How much cost-cutting is too much when lives are at stake?
Although the trial will not directly affect other state systems, experts say the outcome could show officials across the country that courts are serious about enforcing health standards in prison — and that not providing adequate care can have real consequences.
The case is “a great example of why we have it all wrong,” said Homer Venters, a correctional health care consultant who spent years as the medical director for the New York City jail system. Instead of a judge looking over administrators’ shoulders, “the jail has to stop operations if the conditions are inhumane or if the care is not adequate,” he said.
Few prison health care systems get high marks for quality care, regardless of whether the government or a private company provides services. At least 47 states have been the target of major lawsuits. The judge in a landmark case in California — where health care was not privatized — was so appalled by medical services in prisons there that in 2006, he appointed an outside official to take over the state’s $1.2 billion prison health care system.
But bringing companies with a profit motive into the mix poses additional problems, some experts warn, especially in a setting where patients have so little control over their care. “They’ve got every incentive to delay treatment or provide more minimal treatment, or to count something as treatment when it’s not really treatment,” said Michele Deitch, a University of Texas senior lecturer who studies prison conditions. “It would be so much cheaper to just do the things than spend the money on fighting it.”
How private companies took over prison health care
Until the 1970s, every state provided medical care in its own prisons. But these services were “inadequately available and frequently primitive,” said Douglas McDonald, a researcher at health consulting firm Abt Associates. There were few doctors on staff, and
scant health care standards. Prisoners without medical training were known to pull teeth, dispense medications and perform minor surgery on each other, according to one case in Alabama.
Then in 1976, the Supreme Court found that “deliberate indifference by prison personnel to a prisoner's serious illness or injury” was cruel and unusual punishment, forbidden by the Eighth Amendment. A series of cases in the decades that followed clarified that people in prison are entitled to routine and emergency medical, dental and mental health care that is “adequate … at a level reasonably commensurate with modern medical science.”
These court decisions forced prisons to hire hundreds of medical personnel and pay for hospital stays and expensive procedures. Just as health care in broader society began relying on “managed care” to limit costs, some states started privatizing prison medical care, using small contractors to provide hard-to-hire staff and negotiated rates with hospitals, specialists and pharmacies, McDonald said.
Arizona began contracting out its prison health care in 2012, around the time several of these small companies combined to create the major industry players of today.
The newly merged and fast-growing companies were an attractive investment for private equity, says Dan Mistak, acting president of Community Oriented Correctional Health Services, a nonprofit that helps prisons and jails improve health care. Unlike hospitals and other settings subject to Medicare’s strict quality standards, Mistak said, prison health care is paid for almost entirely from state coffers, which eliminates many requirements that drive up cost — and quality — on the outside.
Medicare provides “stringent accreditation processes and data transparency,” says Monik Jiménez, an epidemiologist at the Harvard T.H. Chan School of Public Health. In prisons, “we don’t have any of that with these private providers.”
Arizona has employed three prison health care contractors over the past decade: Wexford, then Corizon, and now Centurion. The ongoing lawsuit — as well as allegations of subpar care, sidestepping court-imposed quality control measures, and chronic understaffing — have dogged all three companies.
The number of medical staff decreased by 11% from 2012 to 2019, despite Arizona’s prison population remaining relatively flat, leaving prisons with hundreds of fewer providers than they needed, according to court documents. During its six-year tenure, Corizon paid the state more than $3 million in fines for failing to hire enough doctors and nurses.
After years of fighting in court, in which the state denied all allegations, officials agreed to settle the case on the eve of trial in 2014. The Arizona Department of Corrections pledged to improve care by ensuring its health care provider met more than 100 benchmarks, including: providing adequate access to counseling and mental health care, providing timely referrals to specialists and following instructions of hospital doctors who release patients.
“When prison officials settle a case of this nature, it’s usually because they recognize that there is a problem, and there’s some commitment to fix it,” said ACLU National Prison Project Director David Fathi, who represents the incarcerated people suing the state.
But the problems have persisted. Two judges have separately held the state in contempt and levied fines totaling $2.5 million for failing to meet the quality standards it had agreed to.
In a recent whistleblower account — the latest in a string of such stories — a former prison nurse alleged that the company directed her to lie on a medical report in order to save Centurion $100,000 in court sanctions.
The state has spent years contesting the evidence, pushing back on recommendations from court-appointed experts, and appealing court orders, losing most of them.
Finally, this year, Judge Silver rescinded the settlement agreement and set the case for trial, writing in a scathing order that she could no longer trust the state was making a good-faith effort to meet the terms of the settlement.
Dustin Brislan says Arizona’s failure to meet health care standards nearly cost him his life.
Brislan, 39, who is serving 17 years at the state prison in Tucson on various charges including armed robbery, is a named plaintiff in the lawsuit. Among other care issues, he said, medical staff switched him from an antipsychotic medication that helped stabilize him to an anti-anxiety drug he told them had not worked in the past.
As a result, Brislan said, his mental health deteriorated into a yearslong cycle of self-harm: cutting himself, then being placed in isolation for weeks or months as a result of the cutting, which led to additional selfharm. At one point, he almost bled to death.
“They are trying to cut corners and save money,” he said, “rather than give us the medications we need.”
Does privatization really save money?
Arizona state Rep. John Kavanagh sponsored the 2011 legislation that privatized health care in state prisons. One of the main goals "was always to save money in tough economic times,” he told The Arizona Republic in 2012.
But cost savings have been elusive from the start. An earlier version of the bill required that privatization save the state money, but when no company could do that, Kavanagh removed the requirement. The legislature pressed ahead with privatization, and the lowest bidder, Pittsburgh-based Wexford Health, got the initial contract, which cost the state about $116 million a year, about $5 million more than the state spent the previous year.
Since then, costs have increased each year and with each vendor change. For the 15-month period that began in July, Arizona agreed to pay more than $216 million to Centurion. That doesn’t include the more than $21 million the state has spent on attorney’s fees and other costs of litigation to defend its care in court.
A similar scenario played out in Florida, where an outside auditor said privatization both decreased the
quality of care in Florida’s prisons and cost the state more money.
In 2017, the Pew Charitable Trusts published a report that detailed how each state structured its prison health care, and how much each state spends.
Centurion’s health care contract was the most common structure. The state pays the company a set amount per incarcerated person per day, creating what critics say is a perverse incentive: If the company spends less, it pockets the difference.
Pew’s findings underscore the question of whether privatization actually saves states money. Data from the report showed no meaningful difference in per-patient spending between states with privately-run and publicly-run health care.
Arizona was near the bottom of the pack, spending $3,529 per patient per year, compared to a national median of $5,720. Only five states spent less. Of those, two provide their own care, two have a contractor providing care, and one uses a mix of both.
In 2019, Dr. Marc Stern, a correctional health care expert appointed by Judge Silver to review Arizona’s prison health care system, identified tens of millions of dollars in state spending on privatization instead of health care. The spending ranges from the vendor’s profit margin, to lawyers to manage and oversee the contract, to duplication of services, to the hundreds of hours that staff on both teams spend facilitating transitions from one vendor to another.
“Privatization has not served, and will continue to not serve, (Arizona Department of Corrections) well,” Stern said.
Maria Schiff, a health policy analyst and one of the authors of Pew’s report, said the money a state spends on health care is only one piece in a much larger equation. The state’s oversight of care, high and measurable quality standards, and efficient use of resources all matter, too.
“What kind of care is a state (and more importantly, its incarcerated individuals) getting for the money it does spend?” she said.
An avoidable but 'sadly predictable' death
The upcoming trial is set to last three weeks. Eight incarcerated people will take the stand alongside state officials and medical experts.
Among the voices who will not be heard is Walter Jordan, who sent notice of his impending death to the court. But his experience — a litany of mismanagement and incompetence that led directly to his death — was “was sadly predictable,” wrote Wilcox, the outside expert.
According to Wilcox, as someone who already had skin cancer in the past, Jordan should have been provided extra-strong sunscreen, but a Corizon nurse denied it. When Jordan developed a scalp lesion, Corizon sent him to a dermatologist, who should have sent him immediately to an oncologist because the lesion had grown so large. But they didn’t.
The dermatologists’ attempts to remove the growth on Jordan’s head “burn[ed] a hole in his skull bone,” allowing the skull to become infected and the cancer to invade his brain. A provider wrote in Jordan’s chart, “THE WOUND IS HORRIFIC.”
One explanation for such poor decision-making, according to Wilcox: The legislature had set unreasonably low caps on how much the state was willing to pay outside specialists, a problem compounded by millions of dollars in bills to outside hospitals and providers that Corizon left unpaid.
“The completely foreseeable result of not paying specialists, or paying them very little, is that there is an evershrinking pool of specialists willing to see prisoners, and the quality of those willing specialists can be lower, as was the case here,” Wilcox wrote.
Wilcox warned more people would have similar experiences unless there were drastic changes.
So far, the lawsuit has outlasted lawyers, Department of Corrections directors, the original judge, and even the original plaintiff in the case, known as Parsons v. Ryan.
Victor Parsons had a stomach infection in prison that went undiagnosed for so long it caused permanent damage. After his release, at the age of 42, he was shot and killed by police in Tucson in 2019 after a standoff at his girlfriend’s apartment.
In an interview conducted while still behind bars, Parsons said he was proud to be part of the case. “Even though people forgo their freedoms when they come to prison,” he said, “they shouldn’t have to forgo their lives.”
Have a news tip on Arizona prisons? Reach the reporter at jjenkins @arizonarepublic.com or at 812-2435582. Follow him on Twitter @Jimmy Jenkins.
Reach the reporter at beth@ themarshallproject.org. Follow Beth on Twitter @schwartzapfel.