By Bob Christie
Capitol Media Services
PHOENIX -- More than three years after a federal judge found that Arizona's prison healthcare system was "plainly grossly inadequate'' and two years after an injunction required vast improvements, so little progress has been made that lawyers for prisoners now want the judge to essentially take over the system.
But attorneys for the state are pleading with Senior U.S. District Judge Roslyn Silver to give them more time to improve care. They argued at a hearing last week that appointing a receiver to run healthcare for more than 35,000 inmates would be a last resort and not the quick fix everyone would like to see.
Mary O'Grady, a private attorney representing the Arizona Department of Corrections, Rehabilitation and Reentry, or ADCCR, cited progress at improving care, although it is slow.
"From Day One, they have been working to comply with this order,'' O’Grady told Silver of the department's efforts. "So there’s a ways to go, but when you’re looking at progress there has been concrete progress in terms of the number of healthcare providers in the system now versus where we were in 2022.''
And O'Grady said appointing a receiver to take over administration of prison healthcare would actually slow progress and siphon cash out of a system that should instead be used to provide patient care. And she pointed to California, where a federal judge appointed a receiver nearly 20 years ago that still oversees that state's prison healthcare.
"They’re expensive and it's costs that don’t go to where we need them in Arizona, which is on the ground, benefiting healthcare,'' O'Grady said. "So they’re not costs that move us forward, they're another layer away from direct service.''
Although Silver issued the current injunction requiring vast improvements in care for inmates in 2023, the case has been ongoing since 2012. That’s when Arizona was sued for what attorneys from the American Civil Liberties Union, the Prison Law Office and other prisoner rights groups called grossly inadequate care that harmed or even killed inmates.
The state agreed to a settlement in 2014.
But federal judges overseeing the case ruled repeatedly in the following years that mental and physical healthcare provided to prisoners failed to live up to basic constitutional standards. They twice found the state in contempt and issued multi-million dollar fines.
In 2021 Silver threw out that settlement because of the ADCCR’s "pervasive material breaches'' of the agreement. And during a 15-day trial before Silver in late 2021, attorneys for prisoners presented evidence of repeated and horrific consequences inmates suffered due to poor or inadequate healthcare.
The judge issued a sweeping, 200-page ruling in 2022, finding that the state officials were acting "with deliberate indifference'' to the substantial risk of harm to inmates. In 2023, she issued a comprehensive injunction laying out what the prison system must do to improve that care.
That injunction required the state to overhaul how it provided care to inmates, vastly increase the number of doctors and nurses to set levels, and provide better access to specialists. Other parts of the injunction included limits on putting inmates in isolation and requirements to treat opioid addiction and Hepatitis infections among the inmate population.
The state has increased spending on healthcare and boosted staffing.
When the injunction was issued, it was spending about $300 million a year on healthcare and had about 1,100 providers under contract. The most recent corrections department report from last month shows about $400 million in yearly spending and more than 1,600 providers under contract.
However, only 1,365, or 84%, of those positions were filled. And NaphCare, the company that won a five-year contract to oversee prison healthcare in May 2022, has been without a state medical director for a year.
More than two years after Silver issued the injunction, reports by court-appointed monitors show the state has made little progress.
"In brief, ADCRR is compliant with some of the requirements of the injunction but remains non compliant with the vast majority, with slow (or little) progress toward achieving substantial compliance,'' the monitor wrote in a July 16 report.
Sophie Hart, an attorney for the Prison Law Office, told Silver during last Wednesday's hearing that it was clear the state lacked the capacity or the will to fix the system and the time had come for Silver to appoint a receiver to do the job.
"We are asking this court to appoint a receiver because after more than a decade of litigation, people incarcerated in the Arizona state prisons remain at unreasonable risk of harm, including death, due to a fundamental lack of medical and mental health care,'' she told Silver. "The monitor’s recent report is devastating -- it details the many system-level failures that continue to cause harm on a daily basis to our clients.''
She said nurses are still providing care a doctor should be providing. And despite the state saying its health-care contractor has hired more, they're still at least 600 short of what a staffing plan calls for.
"Defendants tout the recent increases in doctors, but the monitor's report makes clear that care is still being provided by nurses despite those increases,'' she told Silver. "They cite access increases in access to specialty care, but their own data demonstrates that compliance remains very, very poor.''
The state’s process for reviewing deaths is still failing to identify cases where better care could have prevented those deaths, she said. And she ticked off several other areas where the corrections department was failing.
Silver herself filed a document in the case docket laying out more than three dozen lawsuits filed by prisoners since she issued the injunction in 2023 alleging inadequate or grossly incompetent care. She said she'd consider them while deciding whether a receiver should be appointed.
The basics of the cases were shocking in some cases.
One prisoner whose case is still awaiting trial cited "deliberate indifference'' that led to a leg amputation. Another said he lost a testicle because doctors failed to diagnose or treat his complaint of pain for two months. The state settled that case.
Silver agreed that there’s no fast repair for the state’s poor prison healthcare, but she plainly wants action.
"I think everybody who’s involved here knows that you can’t have a quick fix in the prison setting,'' Silver said.
"And I’m quite aware that this is going to take a lot of care and a lot of resources,'' she told O'Grady. "(But) I've given you guidance and after two years you still don't have all the people who were supposed to be hired according to the contract That’s a concern.''
It was unclear whether Silver intends to rule on the request to appoint a receiver and she sent mixed signals on her thinking.
At one point in the hearing, she told O'Grady not to "worry about what I’m going to do yet, but I’m going to be very interested in what you have to say to avoid a receivership.''
Still, she told O'Grady to come up with a plan to kickstart improvements in the system.
"What are you going to do, how are you trying to get it done,'' the judge said. "What would the department agree to do in order to avoid a receiver -- and in order obviously to comply with the injunction?''
But she left open the possibility that she’ll put a receiver in place to take over healthcare for inmates.
"I will do some rather substantial consideration of everything that you’ve said, I’ll talk to our monitors and I'll issue an order,'' Silver said.
-30-
On X: @AZChristieNews