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California DOC Federal Receiver Is Granted First Waiver of State Law

by John E. Dannenberg

The federal court Receiver for healthcare in California state prisons (see: PLN, Mar. 2006, p.1, Federal Court Seizes California Prisons? Medical Care; Appoints Receiver With Unprecedented Powers) surmounted his first statutory bureaucratic obstacle to gaining constitutional healthcare. On October 17, 2006, U.S. District Judge Thelton E. Henderson ordered waivers of seven sections of the California Government Code and one state regulation so as to permit the Receiver to promptly hire and fire medical staff within the California Department of Corrections and Rehabilitation (CDCR), setting new salary schedules as needed to gain qualified personnel.

The CDCR healthcare Receiver moved for the waiver on September 12, 2006 to remedy a staffing crisis that was continuing to result in CDCR prisoners unnecessarily dying from inadequate healthcare. The court responded to repeated reports by the Receiver that CDCR healthcare ?was plagued by? a lack of qualified doctors and nurses, a void tied directly to the non-competitive pay scales for these professionals. Doctors? salaries were 20-40% below market, and nurse salaries up to 57% below market. The result was a vacancy rate in CDCR?s 33 prisons ranging from a low of 20% to a high of 90%. Moreover, other ?critical clinical positions? remained understaffed: 39% of pharmacists, 44% of radiological technicians and 63% of clinical dietician positions were vacant statewide.

Not surprisingly, the Receiver reported to the court his inability to achieve constitutionally adequate healthcare without these positions ably filled. But the state bureaucratic hiring and firing process (some unqualified personnel had to be weeded out) was so cumbersome that it prevented the Receiver from doing his job. While CDCR did not dispute the need, nor the increase in salaries needed to attract requisite personnel, it was paralyzed by red tape.

Recognizing its own bureaucratic impairment, the state requested the court grant them a waiver of the problematic state laws so that it could comply with the Receiver?s healthcare mandate. The court obliged. It suspended compliance with California Government Code §§ 19816 [Department of Personnel Administration (DPA) authority], 19826 [designates DPA for setting civil service salaries], 19829 [authorized DPA to set salary ranges], 19832 [permits DPA to set salary merit adjustments], 19836 [authorizes DPA to exceed salary scales for recruitment], 3516.5 [requiring DPA to first confer with unions] and 3517 [requiring Governor or DPA to bargain in good faith regarding wages, etc.]. The court also waived Title 2, § 599.681 of the California Code of Regulations [setting methodologies for salaries within same classification].

Noting that the state had only made a half-hearted effort to gain relief on its own, the court concluded that it had ?zero confidence that the State would succeed in adequately raising salaries through normal collective bargaining channels, since it has had this opportunity and failed.? Accordingly, the court ordered the waiver for the limited purpose of enabling the Receiver to get his job done. One dark side-effect of this order anticipated by the Receiver is that qualified applicants in other state agencies might transfer to CDCR positions solely to boost their ?final salary grade? for retirement pay calculation purposes. The court directed the Receiver to screen out any such obvious subterfuge. See: Plata v. Schwarzenegger, U.S.D.C. (N.D. Cal.), Case No. CO1-1351 TEH.

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Related legal case

Plata v. Schwarzenegger