DOC gets ul­ti­ma­tum on deal for health care

Judge: Com­ply, get new agree­ment or go to trial

The Arizona Republic - - Front Page - Lau­ren Cas­tle

Five years af­ter the Ari­zona De­part­ment of Cor­rec­tions reached a set­tle­ment in­volv­ing the health care of peo­ple in state prisons, a fed­eral judge has or­dered the agency to de­cide what it will do next about its non-com­pli­ance with the or­der.

U.S. District Judge Roslyn Sil­ver gave the Cor­rec­tions De­part­ment three op­tions in her or­der: com­ply with the set­tle­ment, cre­ate a new set­tle­ment, or ask for a trial to be held on DOC’s in­abil­ity or re­fusal to com­ply with the set­tle­ment.

The or­der, is­sued Fri­day, comes af­ter court-ap­pointed med­i­cal ex­pert Dr. Marc Stern submitted a re­port ear­lier this month on the de­part­ment’s pro

gress on the set­tle­ment’s re­quire­ments for pa­tient treat­ment.

Ari­zona owes mil­lions in fines for its fail­ure to com­ply with terms of the set­tle­ment since the class-ac­tion law­suit against the de­part­ment, Par­sons v. Ryan, was set­tled in 2014.

“De­fen­dants have spent mil­lions of dol­lars on the present lit­i­ga­tion and de­fen­dants ap­pear de­ter­mined to spend mil­lions more in the fu­ture,” Sil­ver stated.

In Septem­ber, lawyers rep­re­sent­ing in­mates asked the court to ap­point a fed­eral re­ceiver who would over­see the state’s de­liv­ery of health care.

Both par­ties have un­til Oct. 23 to in­form the court on how they would like to pro­ceed.

Pa­trick Ptak, a spokesman for Gov. Doug Ducey, said Mon­day the gov­er­nor’s staff is re­view­ing the or­der.

“Our ad­min­is­tra­tion is com­mit­ted to im­prov­ing in­mate care,” he said.

Prison Law Of­fice at­tor­ney Corene Ken­drick told The Ari­zona Repub­lic the plain­tiffs are eval­u­at­ing the pros and cons of each op­tion that Sil­ver pre­sented in the or­der.

“Judge Sil­ver’s or­der makes clear that she is not go­ing to put up with the ex­cuses and friv­o­lous le­gal ar­gu­ments that ADC and their at­tor­neys have been mak­ing for years about their fail­ure to pro­vide con­sti­tu­tion­ally re­quired health care to pris­on­ers,” Ken­drick said.

The plain­tiffs hope the de­part­ment’s new direc­tor, David Shinn, will ac­knowl­edge there are prob­lems that need to be fixed without de­lay.

Shinn starts as DOC direc­tor next week.

Op­tion 1: Com­ply­ing with set­tle­ment

If the De­part­ment of Cor­rec­tions replies that it would like to com­ply with the cur­rent set­tle­ment, the court will look at the med­i­cal ex­pert’s re­port to de­cide if its rec­om­men­da­tions should be adopted. If this op­tion is cho­sen, the court will be more ac­tive in mak­ing sure the de­part­ment com­plies, the or­der said.

The de­part­ment has faced fines for its fail­ure to com­ply with the terms of the set­tle­ment and has said the court did not have the au­thor­ity to en­force fees.

“It is fool­ish to be­lieve the par­ties meant for the Court to have no en­force­ment mech­a­nisms,” Sil­ver said in the or­der.

Stern be­lieves even if the de­part­ment were com­ply­ing, in­mates still would not be re­ceiv­ing the re­quired level of care.

In the or­der, Sil­ver stated the de­part­ment could be sus­cep­ti­ble to more law­suits over care.

Op­tion 2: Cre­at­ing a new set­tle­ment

In his re­port, Stern sug­gested some per­for­mance mea­sures should be elim­i­nated and oth­ers re­vised.

A sup­ple­men­tal set­tle­ment agree­ment could be cre­ated, and it could in­clude au­to­matic en­force­ment mech­a­nisms.

“It is note­wor­thy that this op­tion of­fers the immense ben­e­fit of pos­si­bly re­solv­ing the en­tire con­tro­versy, in­clud­ing all mat­ters be­fore this Court and the Ninth Cir­cuit,” Sil­ver stated.

Op­tion 3: Costly new trial

The De­part­ment of Cor­rec­tions con­tin­ues to ar­gue Sil­ver doesn’t have the power to force com­pli­ance with the set­tle­ment.

“And if De­fen­dants con­tinue to ar­gue the Court lacks mean­ing­ful au­thor­ity to co­erce them into com­ply­ing with the stip­u­la­tion, set­ting aside the stip­u­la­tion likely is the only so­lu­tion,” Sil­ver stated in the or­der. “If this is the pre­ferred course for De­fen­dants, and Plain­tiffs do not ob­ject, the Court is will­ing to sched­ule a trial in the im­me­di­ate fu­ture, which will be costly to the tax­pay­ers of Ari­zona.”

In Au­gust, the de­part­ment asked Sil­ver to not im­pose more fees and said it took steps to com­ply with the set­tle­ment, but a switch of health-care con­trac­tors led to dif­fi­cul­ties.

Law­suits ac­cused the de­part­ment’s past health-care man­age­ment provider, Cori­zon Health, of con­tribut­ing to Ari­zona in­mates’ deaths and leav­ing at least one woman to give birth alone.

Cen­tu­rion took over the state’s health-care con­tract from Cori­zon in July. Cen­tu­rion has a history of sim­i­lar prob­lems, and law­suits, in states across the coun­try.

Con­tentious law­suit dates to 2012

The case, Par­sons v. Ryan, was brought in 2012 by the Ari­zona Cen­ter for Dis­abil­ity Law on be­half of 13 in­mates in De­part­ment of Cor­rec­tions prisons, al­leg­ing the de­part­ment pro­vided in­ad­e­quate care. The law­suit was joined by at­tor­neys from the Amer­i­can Civil Lib­er­ties Union and the Cal­i­for­ni­abased Prison Law Of­fice.

Par­ties in the case reached a set­tle­ment in 2014, and the court of­fi­cer pre­sid­ing over it, Mag­is­trate Judge David Dun­can, con­tin­ued to mon­i­tor com­pli­ance with the set­tle­ment. But by June 2017, he be­came in­creas­ingly ag­gra­vated at the de­part­ment’s fail­ure to meet the stip­u­lated bench­marks.

In July 2018, Dun­can im­posed sanc­tions of more than $1.4 mil­lion, and he found DOC Direc­tor Charles Ryan and the de­part­ment’s med­i­cal direc­tor, Richard Pratt, in con­tempt of court.

Then Dun­can re­tired from the bench for med­i­cal rea­sons.

Ari­zona Cor­rec­tions ap­pealed to the 9th U.S. Cir­cuit Court of Ap­peals, and asked Judge Roslyn Sil­ver, the district court judge as­signed to take over the case, to re­scind many of Dun­can’s or­ders.

Among other de­mands, at­tor­neys for the Cor­rec­tions De­part­ment asked that mon­i­tor­ing be ter­mi­nated al­to­gether, that they not have to pay $1.25 mil­lion in at­tor­ney fees and not have to con­tinue track­ing in­ci­dents of non-com­pli­ance with the set­tle­ment.

Sil­ver de­nied the mo­tions in a Novem­ber rul­ing.

In her con­clu­sion to that rul­ing, Sil­ver es­ti­mated the state of Ari­zona has spent more than $5.5 mil­lion in at­tor­neys’ fees in the case, mostly over the past three years.

“While De­fen­dants are free to uti­lize the State’s re­sources as they wish,” she wrote, “at some point their con­tin­ued in­sis­tence that tax­payer money is bet­ter spent on as­sid­u­ously de­fend­ing their non­com­pli­ance with the Stip­u­la­tion, than on ef­forts to­wards rem­e­dy­ing the fun­da­men­tal un­der­ly­ing cause of that non­com­pli­ance, is likely ill-con­ceived and ill-ad­vised.”

Repub­lic re­porter Maria Pol­letta con­trib­uted to this ar­ti­cle.

Have thoughts about Ari­zona’s prisons? Reach crim­i­nal jus­tice re­porter Lau­ren Cas­tle at Lau­ren.Cas­[email protected] gan­nett.com. Fol­low her on Twit­ter: @Lau­ren_Cas­tle.

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