15:13, February 27 103 0 abajournal.com

2018-02-27 15:13:06
Federal judge considers $1M in fines for prison medical provider’s ‘intractable failures’

In late December, federal Magistrate Judge David Duncan waved an iPad in front of his Phoenix courtroom, enraged. He had just read a local news article suggesting that the Arizona Department of Corrections and its for-profit medical provider Corizon Health were gaming a system put in place to ensure adequate health care for the state’s prisoners. “There is no other way to read it,” he said. “It’s just a game to beat the judge and his monitoring program.”

Duncan has been overseeing a court case aimed at improving medical and mental health care in Arizona prisons. Parsons v. Ryan, which began in 2012, is one of several lawsuits across the country in which Corizon is accused of providing care so shoddy that it amounts to cruel and unusual punishment: delayed or denied treatment, too few doctors and nurses, referrals and medication refills that fall through the cracks.

Corizon disputes these claims, and in the Arizona case, the state arrived at an agreement with the prisoners that explicitly says that government officials “deny all the allegations.” In that agreement, struck in 2014, the state — and, by extension, Corizon — commits to meeting 103 standards governing everything from how quickly prescriptions are filled to how often those with mental illness see a counselor. Part of the agreement was that the state would measure how well it was meeting the standards and report the results back to the court.

For the first few years, according to the state’s own reports, it did not go well. Among other problems, the state was not providing urgent medication or specialty care quickly enough and prison doctors weren’t reviewing discharge orders for sick prisoners returning from the hospital. “You fundamentally have an obligation to provide these services to these inmates,” Duncan said at a 2016 hearing. “You failed to do it.” At one point the judge called the reports “chilling.”

Under the terms of the Arizona lawsuit, Corizon must ensure that patients who are referred to specialists see them within 30 days. But the story, by NPR station KJZZ, included an account by a physician who said Corizon asked her to cancel referrals if they weren’t completed in that time frame to avoid fines from the court. “After 30 days we get nailed for 1,000 bucks a day until they are seen,” read an email from a Corizon supervisor to the physician.

Martha Harbin, a spokesperson for Corizon, told The Marshall Project that Corizon would disprove all of the claims made by KJZZ at an upcoming court hearing. The supervisor “acted appropriately,” Harbin said. “The email was taken out of context and its meaning distorted by Dr. Watson and KJZZ.” Officials at the Arizona Department of Corrections did not respond to several emails with detailed lists of questions.

Harbin said the company is failing to meet only a small fraction of the standards under the lawsuit and that those failures result from how difficult it is to hire staff in Arizona. In an email, she detailed the company’s extensive efforts to recruit and train staff. “If staffing penalties were merely the cost of doing business, we certainly wouldn’t be funding this level of HR activity,” she said.

Corizon, based in Brentwood, Tennessee, is one of the nation’s largest for-profit prison healthcare providers, with contracts in 30 local jails and eight state corrections systems, according to Harbin.

Allegations of mismanagement and poor patient care have recently caused Corizon to lose some high-profile and lucrative contracts. The company has been the target of thousands of lawsuits — including other large-scale class action suits ongoing in Idaho and Alabama.

Any prison or prison-based provider is inevitably going to be a target for legal action, in part because the courts are often prisoners’ only means of redress for grievances large and small. What’s striking about the recent cases, however, is their similarities.

The suits describe a multi-layered bureaucracy in which even routine medical referrals require approval from middle management; a crisis-level shortage of nurses, doctors, psychiatrists, and other medical staff; and serious but treatable illnesses that went untreated and turned deadly. The Arizona claim described a 59-year-old inmate who died after nurses “repeatedly ignored his desperate pleas for help…even after open weeping lesions on [his body] were swarmed by flies.” A handwritten “notice of impending death” was filed by an inmate whose cancer went untreated. “Now because of there delay, I may be luckey to be alive for 30 days,” he wrote in August. He died in September.

Yet many experts say that the quality of a private contractor’s care comes down to how closely they’re watched. Kansas and Missouri, which both contract with Corizon, have teams monitoring the company’s work. Kansas’s is based at the local university hospital, according to the Kansas City Star; Missouri’s has a nine-person team based at the Department of Corrections, according to a spokesperson there. Kansas’s contract includes financial penalties if Corizon fails to meet certain standards; Missouri’s does not.

“I’ve seen private providers that have done a very good job. That’s because somebody is keeping a watch on them, and their contracts are well run,” says Steve J. Martin, a corrections expert who has served as a court-appointed monitor in several lawsuits.

In Arizona, the Department of Corrections has 33 employees in its “Health Services Contract Monitoring Bureau” tasked with keeping an eye on Corizon, and the contract includes financial penalties. The company has paid upwards of $3 million in fines for not having enough doctors and nurses on staff, according to the testimony of Charles Pratt, who oversees the Corizon contract for the state. But with a contract worth more than $150 million a year, even Judge Duncan was skeptical that these fines change the company’s calculus.

“Is it possible that they have made the economic decision that they are better off paying the fine than filling these positions?” he asked.

“It is,” Pratt replied.

In Idaho, where a class action lawsuit similar to the Parsons suit is ongoing, Corizon has been fined $178,000 since 2014 for not having enough staff and other problems, according to state officials. The contract there is worth more than $43 million a year.

“The private provider, their attorneys, are superior in their knowledge of contracts,” said Martin, who is currently serving as a court-appointed monitor on Rikers Island. “More often than not the agency is at a disadvantage. They’re starting 50 yards behind.”

Now Corizon faces $1 million or more in additional fines from the Arizona court as the judge considers holding them in contempt for their “pervasive and intractable failures” to meet the terms of the settlement. He could issue his ruling at a hearing on Tuesday.

Settlements, like contracts, need close, ongoing supervision by a neutral party to function effectively, say Martin and other corrections experts. In Idaho, the judge appointed an independent monitor, known as a special master, to evaluate how well the state was providing health and mental health care. Yet he was duped when the state “attempted to paper over and mislead the special master about the inadequacies of its mental health care system,” the judge later found.

The Arizona settlement has no special master. “In the settlement negotiations we pressed hard for an independent monitor, but the state was adamant that it would never agree to such a thing,” says the ACLU’s David Fathi, one of the attorneys representing the prisoners.

The agreement allows the state to monitor itself, which was at issue in the December hearing when the judge was so angry. “I had always been a little bit…concerned about the fact that the fox was guarding the hen house,” Judge Duncan said, noting that he may now appoint an independent auditor.

This article was originally published by 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.