A federal judge has scrapped a six-year-old class action legal settlement over inmate health care, blasting the Arizona Department of Corrections for not complying with its obligations.
U.S. District Judge Roslyn Silver said millions of dollars in fines and repeated judicial warnings haven’t forced the state to comply with the agreement. So she is ordering a trial.
“Defendants have in the past six years proffered erroneous and unreliable excuses for non-performance, asserted baseless legal arguments, and in essence resisted complying with the obligations they contractually knowingly and voluntarily assumed.” Silver said in her 37-page July 16 order. “The present situation must end.”
Officials with the Department of Corrections, Rehabilitation & Reentry declined to comment, citing ongoing litigation. Gov. Doug Ducey’s office did not respond to an interview request.
Silver’s order means the state once again will have to defend its decision to turn over the administration of prison health care to private for-profit contractors.
A class-action lawsuit in 2012 alleged inmates received inadequate medical, dental, and mental health care as well as inadequate physical exercise and nutrition. It also claimed inmates were forced into conditions of extreme social isolation and environmental deprivation.
The case, known as Parsons v. Ryan, was filed by the Arizona Center for Disability Law, the American Civil Liberties Union, the Prison Law Office and other firms.
ACLU Deputy Director Corene Kendrick said Monday that Silver’s order should serve as a wake-up call to the Department of Corrections, Ducey and the state Legislature.
“The federal court has had enough of their utter disregard for the court’s orders and their failure to live up to the promises that the State made in 2014 to provide basic health care to the people in the prisons,” Kendrick said in a statement.
In 2014, the state entered into a settlement agreement that Silver said “was intended to, over a reasonable amount of time, resolve all claims such that the complaint would be dismissed.”
The agreement called for the creation of health care and maximum custody performance measures that would be tested with a monthly monitoring process at each of the 10 state prisons. Once the Department of Corrections maintained an 85% compliance rate, the monitoring, and the lawsuit, would end.
But that didn’t happen. Instead, Silver noted, the Department of Corrections failed year after year. In 2016, just a year after the agreement was signed, lawyers representing inmates asked the court to enforce the settlement.
A judge said the state demonstrated continued “serious and abject failures” and did not offer a remediation plan. Instead of correcting problems, the judge found material errors in the state’s data and said it changed the monitoring reports without a valid explanation.
Silver said the judge “found the worst-performing measures were for prescription medication, sick visits, doctor visits, review of diagnostic reports, receipt of diagnostic reports, chronic care visits, and infirmary care, and warned without immediate improvement remedial action would be taken.”
In 2018, the court ordered the state to pay $1.45 million for not complying with the agreement.
A year later, in 2019, Silver threatened additional fines. Lawyers for inmates asked her to appoint a federal receiver who would oversee the state’s delivery of health care.
The Department of Corrections asked the court at the time not to impose new fines, saying it took reasonable steps to come into compliance and blaming problems on the switch to a new health care contractor.
Centurion Health took over the state’s prison health care contract from Corizon Health. Lawsuits accused Corizon of contributing to Arizona inmates’ deaths and leaving at least one woman to give birth alone.
Centurion, however, had its own history of problems and lawsuits in states across the country.
Gov. Doug Ducey in 2019 appointed David Shinn as director of the Arizona Department of Corrections. But problems related to staffing and custody showed little evidence of correction, according to Silver.
In February, she found the Department of Corrections in civil contempt for again failing to comply with the agreed-upon performance standards. She fined the state $1.1 million — or $50,000 apiece for non-compliance with 22 performance measures.
In her trial order, Silver said the Department of Corrections used a “sad illusion” to suggest the department was mostly in compliance with the standards. She said the department tried to give equal weight to maintaining medical records as to treatment.
“After a few years of effort, defendants were able to perform the absolute bare minimum of maintaining legible medical records,” Silver said in the order. “But requiring legible records cannot be compared to other performance measures related to substantive care.”
She also said the Department of Corrections tried to blame non-compliance on COVID-19.
“Critically, compliance numbers from January, February, and March 2021 remove any doubt whether COVID-19 was the moving force behind noncompliance in 2020,” Silver said. “It was not.”
The Department’s “entire response” focused on Centurion’s limitations in light of the pandemic, Silver said. “But the Director, not the private health care contractor, is legally responsible in Arizona for the provision of health care.”
Silver said the state’s failures have led to preventable deaths, possibly including suicides, and untold suffering by inmates unable to obtain medical treatment.
“In these circumstances, there is no plausible compensation that can be provided to plaintiffs,” Silver said. “The dead are not advantaged by defendants’ repeated promises of better behavior in the future nor are they able to gain from monetary awards. It is impossible to quantify, monetarily, the harm suffered by prisoners because of a lack of adequate health care.”
Kendrick said the ACLU wants Silver to appoint a receiver to oversee health care in Arizona prisons.
“The Arizona Department of Corrections is not above the law,” she said. “They must protect the lives and health of the people incarcerated in their prisons, and ensure that when people are released from prison – as the vast majority of them are – that they are not suffering from worse physical and mental health conditions than when they came to prison for ‘rehabilitation.'”
Kendrick said the ACLU welcomes a trial. The systemwide failures identified in the class-action suit in 2012 still exist, she said.
“We will show that the deliberate choices made by the Department of Corrections and its health care vendors to not take all reasonable measures to hire adequate numbers of health care staff have resulted in deaths, suffering, and permanent injuries by incarcerated people,” she said. “We will show that the conditions in the isolation units fail to meet the most basic requirements of the Constitution.”
In her order, Silver said the state has shown pervasive indifference toward the settlement. She said officials have deflected failures “and employed scorched-earth tactics” to oppose every attempt to resolve them.
She said now that the court is faced with sanctioning the Department of Corrections for hundreds of violations, there doesn’t appear to be a contempt charge large enough to force compliance.
“It is true the parties expected compliance would take time,” Silver said in her order. “But neither plaintiffs nor the court expected that six years after the stipulation, the court would be faced with having to sanction Defendants for at least 229 instances of noncompliance regarding health care performance measures, assessing defendants’ refusal to comply with clear court orders regarding monitoring requirements, and beginning anew with maximum custody and mental health monitoring,” she said.
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