DOC gets ultimatum on deal for health care

Judge: Comply, get new agreement or go to trial

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.Castle@ gannett.com. Follow her on Twitter: @Lauren_Castle.

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