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Federal Court Seizes California Prisons' Medical Care; Appoints Receiver With Unprecedented Powers

Federal Court Seizes California Prisons' Medical Care;
Appoints Receiver With Unprecedented Powers

by Marvin Mentor

The California Department of Corrections and Rehabilitation (CDCR) is forcefully having its failed healthcare system both corrected and rehabilitated. Despite court-ordered healthcare remediation and monitoring over the past 25 years, CDCR's performance continued to fail Eighth Amendment standards proscribing cruel and unusual punishment. Citing continuing preventable prisoner deaths in CDCR at the rate of 64 per year, a frustrated but undeterred Senior U.S. District Court Judge Thelton E. Henderson stripped the $1.2 billion CDCR healthcare authority from then Corrections Secretary Roderick Hickman and, after appointing interim receiver John Hagar in November 2005, appointed highly acclaimed health administrator Robert Sillen, 63, on February 14, 2006, to take control. Effective April 17, 2006, Sillen will begin his $650,000/yr. post to take over CDCR's healthcare by hiring his own management team.

Judge Henderson's February 14th order granted Sillen the unprecedented power to hire, fire and discipline staff; to make and break contracts; to write and discard policies; and to control every healthcare dollar he orders used for CDCR's 160,000 prisoners. If a state law, regulation or contract, including labor agreements [read: the powerful prison guards union (CCPOA)], blocks his way, Sillen may simply ask Henderson to waive it," the order said. CDCR's only remaining healthcare function is to fund the checks that Sillen writes. Sillen can even build new medical facilities and charge it to California's treasury.

But even this action may not be Judge Henderson's final blow. If CDCR custody operations (i.e., the normal prison warehousing function) interfere with Eighth Amendment-dictated healthcare delivery, the Judge warned he would not hesitate to seize all of CDCR to obtain the constitutionally required results.

CDCR Has Priors

Failed healthcare in CDCR has necessitated repeated court oversight. From 1985-1995, San Quentin State Prison was under a consent decree specifying minimum healthcare standards. (Marin v. McCarthy, U.S.D.C. (N.D. Cal., Case No. C-80-00012 MHP.) Beginning in 1989, CDCR's prison hospital, the California Medical Facility (Vacaville), was placed under continuing control and monitoring by Gates v. Deukmejian, U.S.D.C. (E.D. Cal.), Case No. CIV-S-87-1636 LKK JFM. A 1987 settlement agreement was inked to properly care for pregnant prisoners at the California Institution for Women (CIW). (Harris v. McCarthy, U.S.D.C. (C.D. Cal.), Case No. CIV-85-6002 JGD.)

In the 1990's, improvement in women prisoners' medical care was ordered at the Central California Women's Facility and at CIW. (Shumate v. Wilson, U.S.D.C. (E.D. Cal.), Case No. CIV-595-619 WBS PAN.) Severe mental and medical healthcare injuries were abated by Judge Henderson at California's supermax Pelican Bay State Prison beginning in 1995. (Madrid v. Gomez, 889 F.Supp. 1146 (N.D. Cal. 1995).) A statewide deficiency in mental health care was ordered fixed in Coleman v. Wilson, 912 F.Supp. 1282(N.D. Cal. 1995). CDCR's malevolent disregard for healthcare also spilled over into failure to accommodate prisoners' disabilities as protected under the American with Disabilities Act (ADA) and the Rehabilitation Act (RA). See: Armstrong v. Davis, U.S.D.C. (N.D. Cal.), Case No. C-94-2307 CW; Clark v. California, U.S.D.C. (N.D. Cal.), Case No. C-96-1486 FMS. And all of the above were just the class action healthcare complaints. The individual cases for money damages and injunctions are not included.

Statewide Healthcare Protocol Ordered

Nonetheless, after suffering this withering litany of court lashings, CDCR still didn't get it." In Spring 2002, they settled a statewide medical care suit affecting all CDCR prisoners not already under federal court decrees. (Plata v. Davis, U.S.D.C. (N.D. Cal.), Case No. C-01-1351 TEH.) Later renamed Plata v. Schwarzenegger, this case morphed into increasingly binding agreements as each prior one failed to convince CDCR to deliver what the court expected. In 2003, CDCR was ordered to phase in major improvements in its 33 prisons on a court-approved four-year schedule. Detailed in a 1,000 page Policies and Procedures Manual, the plan covered specified needs for Reception Centers, sick call, specialty clinics/consultations, Urgent/Emergency response, infirmary care, preventative care, chronic care, diagnostic services, medication, medical diets, transfers and quality monitoring (QMAT). Later, protocols were added for TB, HIV, and HCV (hepatitis) treatment.

But this massive plan proved more than CDCR could deliver on. When the first phase of implementations was done," Judge Henderson inspected nearby San Quentin. He was horrified" and angry with what he saw. His observations noted a dentist, without washing his hands, using the same glove when moving from one patient's mouth to the next. Clinical treatment rooms had no running water where staff could wash up between patients. Hospital rooms were dank and filthy. Sewage water leaked from one floor to the next. Many hundreds of Reception Center technical parole violators were housed" on bunks on the floors of the cell blocks, only 12" apart. [This had been a deliberate overpopulation gimmick (bed-vacancy-driven recidivism) to drive guard overtime to $1 million per month at San Quentin.] Judge Henderson ordered then-CDCR Director Jeanne Woodford to eliminate those unfit beds immediately. And this is what occurs when a judge is conducting an inspection visit.

The Judge was further concerned by prisoner complaints of transfer in lieu of treatment. Since prisoners in most other prisons were not yet phased in," San Quentin prisoners whom QMAT technicians deemed needed treatment were instantly put on a bus to facilities with less medical care, for the most part, than at San Quentin. Prisoners taking just cholesterol medication were hastily slated for transfer. A life prisoner with high blood pressure (under control with medications) was whisked to Solano State Prison to live in a triple-bunked dorm, where he saw no doctors and got no medication for weeks. A terminal Hepatitis-C patient who needed a hernia operation and a liver transplant was swept up and taken to rural Soledad State Prison. One high risk" patient was sent to remote Pleasant Valley State Prison where it was known that they had no doctors presently on staff. Thus, the quality" monitors were actually just doing political damage control. Instead of bringing healthcare to the needy, they removed the needy from their ongoing healthcare, and more importantly, from the court's then-current Phase 1 oversight.

After complaints mounted over the 109 instant transfers ordered at San Quentin, the mass exodus quietly subsided and some improvements were made. The floor bunks were decommissioned (with occasional violations that were hidden from the visiting Inspector General). New blood pressure monitors were purchased. Nurse stations were manned.

But still the system faltered. Doctors' orders were not followed. Surgeries and liver biopsies were delayed or simply canceled. Specialty clinics (outside consultant doctors) were canceled. Many staff quit, including doctors and nurses.

The problem was not unique to San Quentin. CDCR admitted it had 150 doctor vacancies. In addition, CDCR's statewide vacancy rate for registered nurses was 24%. Other openings were: medical technical assistants, 22%; clinical psychologists, 17%; psychiatric technicians, 15%; and psychiatrists, 25%.

Court Warnings Were Clear

Prior to lowering the boom, Judge Henderson gave CDCR ample warning. The threats were not made in an attempt to wield power, but to stem the unabated string of preventable deaths of CDCR prisoners. In his May 10, 2005 Order to Show Cause re Civil Contempt and Appointment of Interim Receiver, the judge referred to a shocking" February report given by court-appointed experts detailing widespread evidence of medical malpractice and neglect." [See related story in this issue of PLN on the court experts' findings at San Quentin.] They found that 34 of 193 prison deaths in recent years were highly problematic." And that was for the death records that could be located. The court stated bluntly, The Governor has appointed, and the State has hired, a number of dedicated individuals to tackle the difficult task of addressing the crisis in the delivery of health care in (CDC], and despite the best efforts of these individuals, little real progress is being made. The problem of a highly dysfunctional, largely decrepit, overly bureaucratic, and politically driven prison system, which these defendants have inherited from past administrators, is too far gone to be corrected by conventional methods.
The court went on, The prison medical delivery system is in such a blatant state of crisis that in recent days defendants have publicly conceded their inability to find and implement their own solutions that will meet constitutional standards. The State's failure has created a vacuum of leadership and utter disarray in the management, supervision, and delivery of care in the Department of Corrections' medical system." ... In light of this crisis and the defendants' concessions that the constitutional violations will not be corrected for a long time to come, the Court is compelled to take upon itself to construct a remedy that will cure the violations as soon as possible." The court was highly critical of the emerging pattern of inadequate and seriously deficient physician quality," a reference to the many CDCR doctors who had questionable credentials or checkered pasts (19% according to an audit). The Order to Show Cause asked why an interim receiver should not be appointed and set the matter for hearings, with a decision projected by July 11, 2005. State Senator Gloria Romero, a CDCR critic, welcomed the court's action. In a stunning admission of political and bureaucratic failure, then CDCR Secretary Roderick Hickman conceded that CDCR was unable to manage its medical system.

Horror Stories Continue

Meanwhile, horror stories continued to surface. A prisoner injured in a fight at Salinas Valley State Prison in June 2000 who couldn't move was not treated because the doctor accused him of faking it." The doctor shot him up with a placebo solution to make him stronger." Later examination revealed need for cervical fusion that left the prisoner a quadriplegic. The doctor, Dr. Isaac Grillo, was suspended by the Medical Board. A prisoner with lupus (autoimmune disease) entreated prison officials not to transfer him to a prison with no lupus specialist. But they did anyway, where he was housed in an overcrowded gym with no treatment whatever; after nine months of begging, he was finally transferred again. A prisoner at Pleasant Valley State Prison who waited a year to get his colonoscopy could not undergo the test because by then his tumor mass was so large the scope could not pass through. Separately, a doctor prescribed anti-psychotic medication for a prisoner struggling to breathe with pneumonia. Yet another doctor, whose license had been suspended for seven years due to alcoholism and incompetence, was appointed vice-chairman of a prison's medical care review committee.

It is a disaster," admitted the doctor's union executive director Gary Robinson. Michael Pickett, former deputy director of CDCR who oversaw healthcare, called CDCR healthcare a wreck," adding, I wouldn't go to a CDC doc for nothing." Dr. Michael Puisis, court-appointed expert, testified on his findings for four hours in a May 2005 court hearing, calling the system anarchy" in which doctors do what they want, without supervision. He described an absence of record keeping, incompetent doctors, filthy conditions and a lack of equipment and supplies. Donald Specter, attorney for the prisoners, called their treatment cruel.

On July 1, 2005, Judge Henderson, shouldering the moral responsibility lacking in CDCR, took the unusual step of orally ruling from the bench that he would appoint a receiver, accountable only to him. We're dealing literally with life and death." Doctors' union vice-president Gary Robinson said the judge made a very good decision." Lance Corcoran, vice president of the powerful California Correctional Peace Officers Association (CCPOA), the guards' union, expressed frustration, In many ways [prisoners] receive better health care than our elderly and our veterans." Robin Best, a former psychiatric nurse at Mule Creek State Prison, called the ruling Good news. They were never going to change the system until somebody forced them to." Then Secretary Hickman said, The taxpayers of this state can't afford to keep paying for repeated lawsuits that result from ... inadequate healthcare [and] poor mental health treatment." Ebullient Plata prisoners' attorney Specter said, It's certainly everything we asked for." Michael Jacobsen, director of the Vera Justice Institute, noted that to make things work, the receiver would have to invoke deep changes reaching into the very culture of prison operations. Judge Henderson, quietly passionately" reciting for a half hour a trail of mostly broken promises made by previous CDC authorities dating back 25 years [at times outright depravity, and I intentionally call it that], observed that Medical care needs to be elevated to a higher level and freed from control of custodial personnel," an ominous warning of possible future takeover measures. My decision to establish a receivership is just a start.

Pundits estimated that short-term added costs could reach $100 million per year. These costs were for doctors, nurses, pharmacists and top-level managers, plus a new computerized records tracking system. Prison doctors currently average $134,000 per year, but it may take another $30,000 to make their pay competitive and attract good doctors. Yet, with the aging prisoner population, non-parole of lifers and increasing sentences from three strikes," costs could easily double from the current $1.2 billion tab.

Court Appoints Prison Expert

On October 3, 2005, the court issued a 53 page finding in which it concluded, there is a single root cause of this crisis: an historical lack of leadership, planning and vision by the State's highest officials during a period of exponential growth of the prison population." Judge Henderson issued a parallel order immediately appointing John Hagar as Correctional Expert to the Court. Hagar is familiar to California prisoners; he was the special master that Judge Henderson appointed to handle the federal court's intervention at Pelican Bay State Prison (Madrid v. Gomez, supra). Hagar's number one task was to conduct a nationwide search to find a permanent receiver. He also had the immediate task of coordinating the hiring of physicians and nurses; vacancy rates for nurses at some prisons ran up to 70%.

The 53 page Findings of Fact and Conclusions of Law re Appointment of Receiver summarized the sordid picture of poorly equipped and unsanitary medical facilities, accompanied by haphazard medical and financial record-keeping. Judge Henderson's unswerving focus was clear: a state-run healthcare system that needlessly kills one more prisoner every six to seven days (a pace that quickened to one per day in the Spring of 2005) cannot possibly be said to meet Eighth Amendment standards, and if the state won't stop the unconscionable degree of suffering and death" behind the walls of the 33 CDCR prisons, the court will. The court carefully recounted the historical precedent for receivership, tracing it back to the English Chancery Courts in 1740, invoking the standards therefrom to test for (1) threat of harm, (2) least intrusive means (including lack of effective alternative remedies), (3) continued delay, (4) lack of CDCR leadership, (5) bad faith, (6) wasted resources, (7) likelihood of quick and efficient remedy and (8) other considerations relating to democratic debilitation" and the lack of political will. The only weapon the court reserved was to hold a contempt citation in abeyance.

One week later, more healthcare gridlock was reported at Soledad State Prison. Guards entered the infirmary waiting room on October 15, 2005 and cleared out all the Blacks waiting for their X-rays. The object was to separate them from Latinos, whom they had had fist fights with recently. But the Blacks lost appointments they had waited months for. This is the classic CDCR problem: custody overrules medical staff, and the prisoners suffer for it. Meanwhile, a local hospital wanted to send back a prisoner dying of liver disease, but Soledad had no facilities to care for him. They scrambled to find another prison that did, while the $50,877 hospitalization cost for the first 11 days continued to mount.

By November 3, the court realized that searching" for a receiver needed professional help, and hired Korn/Ferry International to do the job. Korn spokesman Mark Collins said there were lots of candidates, and they were moving with great speed.

Court Expert's Survey Is Chilling

On November 14, 2005, Correctional Expert Hagar issued his 33 page report on clinical staffing. His findings were chilling. Of the 476 registered nurse positions in CDCR, 300 were vacant despite the use of extensive and expensive contract registry personnel. In court evidentiary hearings in June 2005, CDCR's Director of Health Care Services Dr. Renee Kanan stated that the physician vacancy rate was 150. But by the date of the report (November), the rate had more than doubled. (Pleasant Valley State Prison had but one state doctor for its 6,000 prisoners as of October 11, 2005, yet QMAT transferred high risk" patients there from SQ.)

Hagar pointed out a fallacy in the accounting of healthcare personnel. He distinguished between Primary Care Providers (PCP), doctors and dedicated specialists (e.g., neurologists, gynecologists) and found that since a preponderance of initial diagnosis and treatment falls to PCPs, their reduced numbers masked the true loss of general access to medical care. The problem worsens when one notes the segregated yards at each prison (Corcoran State Prison has 11 clinics alone, for example) and the inability to cover all bases with such severe PCP shortages.

Hagar found that in fact as of November 14, 2005, the staffing crisis had worsened since his October 3 appointment, and cited three causative factors. (1) CDCR failed to hire more doctors than it lost. (2) Although CDCR implemented its proposed Quality in Corrections Medicine (QICM) evaluation program to screen existing doctors and potential new ones, the program backfired. Only two existing doctors were found unsuitable for practice, but 60 quit rather than take CDCR's homespun QICM test." Moreover, CDCR did nothing to streamline the bureaucracy of hiring -- often a six month process. Hagar then detailed his plan for effective hiring, including the concept of posts" for physicians, where sufficient staff are hired to man prison clinics 24/7, just like guards' posts." Hagar concluded that since State officials have no coherent or realistic plan to implement corrections actions,& it has become apparent that without orders from the court, [CDCR's] healthcare system may simply collapse.

Predictably, CDCR lawyers reacted by calling Hagar's quick fixes too quick or costly to be legal or effective." In other words, let us kill prisoners as usual and save the budget to cover the guards' 2001-2006 37% contract pay increase and overtime.

On November 28, 2005, Governor Schwarzenegger appointed two healthcare executives to oversee CDCR healthcare. Dr. Peter Farber-Szekrenyi, 61, became Chief of CDCR's Division of Correctional Healthcare Services, while Darc Keller, 58, was appointed to assistant secretary for healthcare policy. Requiring state Senate confirmation, the positions pay $204,000 and $119,100, respectively. Szekreyni has 30 years experience in healthcare administration, albeit none in detention facilities or government.

Judge Takes Gloves Off

But Judge Henderson then took the gloves off." He publicly challenged Schwarzenegger to pay for emergency reforms the same way you find the money to build a tent to smoke cigars," a sarcastic reference to the Governor's response when the Legislature outlawed smoking in all state buildings. Real people are really dying. & Real action is needed," the judge said.

An equally angry Senator Gloria Romero, then conducting Senate confirmation hearings for Hickman and Woodford, demanded answers to what happened to $600 million in appropriations for prison salaries, and why CDCR was unable to pay for healthcare costs. Blindsided by these un-preannounced inquiries, Hickman and Woodford walked out of their confirmation hearing. I'm not going to be as nice as the judge," Romero threatened.

On December 1, 2005, Judge Henderson issued a 15 page order dictating to CDCR its new healthcare staff minimum pay scales and how to do its hiring. They still fail to grasp the gravity of the crisis. I will not sit by while CDCR officials twiddle their collective thumbs," he chastised. In general, doctors' base pay was increased to $154,000 and nurses' pay to $84,000. Judge Henderson gave the Governor five days to appoint a healthcare leader (Dr. Farber Szekrenyi). The judge then gave CDCR 14 days to implement a hiring program that would cut the doctor and nurse hiring process to five days, a process to be monitored so as to demonstrate a 90% compliance rate. Furthermore, all job applications must be reviewed with a hire/no-hire decision rendered within 10 days, also at a 90% compliance rate. Contract healthcare providers were ordered to be paid within 30 days. Credentials of their personnel were ordered to be verified within two days.
Next, the court ordered the Governor's new healthcare director to make his initial status report to the court within 14 days. Finally, the court ordered on-site inspections by Hagar during January and February 2006, and the filing of a status report to the court by March 1, 2006 as to findings at the neediest prisons: Pleasant Valley, High Desert, Corcoran, SATF, Valley State Prison for Women, Avenal, San Quentin and CIM.

On January 9, 2006, the court stated that it was more optimistic than I've ever been in this case that the ship is turning in a positive way." Dr. Szekrenyi reported that job offers had been made to 55 doctors and 180 registered nurses, most of which CDCR expected acceptances on. This would begin to close the gap of 76 doctor openings and 368 registered nurse openings. But court expert Dr. Puisis warned that new hires might quit unless proper supervision is offered.

Receiver Is Appointed

On February 14, 2006, Judge Henderson announced his hire of Bob Sillen, 63 as the court's receiver. Presently retiring from a $244,129/yr. post managing healthcare for California's Santa Clara County, Mr. Sillen will report to work on April 17, 2006 to commence his new $650,000/yr. position. His career experience includes healthcare for Santa Clara County jails and juvenile facilities. Rhonda Brown, executive director of clinics in Santa Clara county, praised Sillen as progressive, innovative and aggressive," predicting he will rip [CDCR healthcare] apart and clean it up and put it back together again.

Sillen told reporters that he would fire people to improve prison healthcare from its current Third World" condition. This state has a tendency to move at a snail's pace for things they want to do and at a dead snail's pace for things they don't want to do," he mused. Sillen was selected from four finalists nominated by Korn/Ferry. He will reportedly open offices in the San Jose area and hire a staff of 25 to manage the task.

More Than Healthcare Needs Curing

CDCR was studied by a blue-ribbon panel in 2004, reporting to Governor Schwarzenegger. It found that CDCR was simply dysfunctional" and opined it would never get better if it didn't gain outside civilian oversight. (See: PLN, Mar.'05, p.1, California's Corrections System Officially Declared Dysfunctional -- Redemption Doubtful.) Although Schwarzenegger flatly rejected this oversight, he's getting it anyway. While perhaps thinly disguised in Eighth Amendment clothing, Judge Henderson has forced just such civilian oversight now over healthcare.

But will it end there? This writer believes not. There is an inherent incompatibility between the missions of custody staff (i.e., guards) and healthcare staff. Custody" is an ingrained mentality bent on suppressing prisoner mobility. It's problem is that it hides behind the farcical label of corrections" (and, recently added, rehabilitation). But this is all a snow job by tough on crime" politicians and the 800 lb. gorilla guards' union (CCPOA). Simply stated, there is no mission, no goal and certainly no incentive to correct" or rehabilitate" so much as one CDCR prisoner. In fact, the incentive ($8.2 billion/yr. and growing) is just the opposite -- garner more pay by keeping more people locked up and minimizing their chances of recovery if they are ever paroled.

To be sure, while Governor Schwarzenegger's cigar tent" has become the court's symbol of what's wrong at the top, the Governor is today proposing building two new prisons and locking up 83,000 more of California's citizens. At the same time, Governor Schwarzenegger faces dismal poll ratings while running for reelection in November 2006. Adding to the mix is the CCPOA's negotiation for a new guards' contract effective June 2006. To prepare themselves, the CCPOA levied a special $30/mo. dues add-on (making monthly dues $103) to raise a war kitty" of $18 million to influence the election. Doubtless, drooling public servant election candidates will swoon to trade promises for dollars. At the end of the day, the near-term increase on prison spending in California -- medical and custody -- will probably surpass $2 billion/yr. And yet, still no one will be corrected" or rehabilitated," as a measured goal.

But the federal receivership points a way out of this conundrum. When the court hears that custody is impeding constitutional healthcare delivery, it will simply order the take-over of custody. Such a receiver would constitute the complete civilian oversight" that Governor Deukmejian's blue ribbon committee insisted was crucial. Then, and only then, might the dysfunctional" CDCR be redeemed. See: Plata v. Schwarzenegger, U.S.D.C. (N.D. Cal.), Case No. C-01-1351 TEH.

Other sources: Los Angeles Times; Sacramento Bee; Associated Press; San Francisco Chronicle; San Jose Mercury; Inland Valley Daily Bulletin; Contra Costa Times;

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Related legal case

Plata v. Schwarzenegger