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CA Prison Medical Care Receiver: Three Top Officials Ousted, Controversial Building Plan Opposed

by Matt Clarke

On March 12, 2009, J. Clark Kelso, California’s federal court-appointed receiver over prison medical care, demanded the resignations of his chief of staff, John Hagar; Stephen Weston, Hagar’s assistant; and medical services CEO Dr. Terry Hill. Hagar and Weston both resigned; Hill refused to resign and was fired. Kelso said the staff changes were “housecleaning that you do every spring,” though Hagar, Hill and Weston cited “irreconcilable differences ... concerning the new direction of the receivership.”

Meanwhile, California lawmakers openly opposed Kelso’s $8 billion plan to reform the state prison system’s medical and mental health services by building seven new prison hospitals, creating 5,000 long-term medical care beds and 5,000 long-term mental health beds. State officials had previously tried to terminate Kelso’s position as receiver, claiming it was unnecessary. [See: PLN, Aug. 2009, p.20].

A California federal court appointed Robert Sillen as the first receiver in 2006 after state prisoners, represented by the Prison Law Office, filed a class-action lawsuit alleging constitutionally inadequate medical and mental health care in the California Dept. of Corrections and Rehabilitation (CDCR). See: Plata v. Schwarzenegger, U.S.D.C. (N.D. Cal.), Case No. C01-1351 TEH. [PLN, March 2006, p.1].

Kelso replaced Sillen as the court-appointed receiver in January 2008 after Sillen was criticized for taking a confrontational approach in his relationship with state officials.
Recently, Kelso has been subjected to criticism too, for excessive spending. California currently spends an average of $14,000 per prisoner on medical and mental health care, more than double the amount spent in New York, Texas and Michigan.

The comparison with other states was also used to criticize Kelso’s plan to build 10,000 medical beds for the CDCR’s 172,000 prisoners. Texas has less than 3,000 long-term medical beds for 125,000 prisoners, while Michigan has 1,440 for 48,000 prisoners. “In states like Texas and Illinois, [prison medical] systems that were in a shambles were built into systems that provide a level of care that is fair and reasonable” at a cost far less than $8 billion, said Dr. Owen Murray, medical director for the Texas prison system. “California may need a more common-sense approach.”

However, Texas has been criticized for dumping prisoners with serious mental health and medical problems into the general population, and its prison medical system has been described as barely constitutional. [See: PLN, May 2008, p.39]. Also, no other state has had to make up for the many years of medical neglect that California prisoners have suffered. Denying adequate medical and mental health care to prisoners is much more expensive in the long run because infections, diseases and other conditions which could have been inexpensively treated at their onset cost much more to treat once they have reached advanced stages.

The quality of medical care for CDCR prisoners is still spotty. San Quentin State Prison’s chief medical officer, Dr. Elena Tootell, described her job as “working with the [medically] underserved....” San Quentin has recently received generous resources as the CDCR’s medical prototype, and is the site of one of the new prison hospitals being built.
State lawmakers who criticize the receiver’s expensive construction plans tend to concentrate their complaints on building costs while ignoring basic medical services such as skilled nursing, dialysis and wound care which result in lower death rates, according to Dr. Tootell.

Yet whether “improved” medical services at CDCR prisons have reduced the death rate is not as clear as one might expect. The number of prisoner deaths listed as “preventable” has dropped, but the number of “possibly preventable” deaths has increased, from 48 in 2006 to 65 in 2007. “The difference between a ‘preventable’ and a ‘possibly preventable’ death is a matter of a degree of certainty, rather than reflecting adequacy of care,” noted Donald Specter, Director of the Prison Law Office.

Overall, the death rate for California prisoners is higher now than it was during the worst years of medical neglect, from 1996 to 2001. In 2007, the receiver reported 292 cases involving “extreme departures from the community standard” of care related to prisoner deaths, which was a notable increase over the previous year.

There is also an issue with the receiver overpaying prison medical staff. While Kelso makes $224,000 a year, down from the $620,628 that Sillen earned, in 2007 at least 240 CDCR doctors and nurses made more than the $226,359 salary of the CDCR’s medical director. Further, seven of Kelso’s staffers, some of them working part-time, made over $225,000 each. Hagar was paid around $390,000 as a part-time employee.

The highest-earning CDCR doctor made $441,774 in 2007, while the top-paid nurse made $330,499. The median salary for CDCR doctors was $35,000 more than for non-prison physicians in San Francisco, one of the highest-paid locales in the state. An expert testified that such higher salaries were necessary to attract qualified personnel to work in prisons and to overcome the pre-receivership legacy of the CDCR, which had hired any doctor with “a license, a pulse and a pair of shoes.” Others disagreed.

The current salaries are “fairly outrageous,” said University of California, Irvine, criminology professor Joan Petersilia. “It’s the downside of what happens when the courts intervene in management practices.”

Kelso defended the salaries of his staff – especially CDCR pensioners, double-dippers who receive both CDCR pensions and large receivership salaries – whom he described as necessary to manage ill but still dangerous prisoners. However, he intends to move many of his core employees to state positions with state pay scales. Following the forced resignation of John Hagar, Hagar’s duties were assumed by Elaine Bush, Kelso’s chief deputy, who makes $160,562 a year. Apparently that is one example of staff salary reductions.

Kelso has proposed gradually reducing the CDCR’s $2.2 billion annual cost for medical and mental health care. He cited the elimination of “extraordinarily expensive” community-based specialty physicians and hospitals located outside CDCR facilities as part of the cost savings. Kelso also noted that his much-criticized medical bed building plan is designed to be implemented in stages, so it can be terminated should the CDCR’s needs be met with less than the entire proposed complement of prison hospital beds.

Another costly problem with the CDCR’s medical care system is corruption and malfeasance. On November 25, 2008, five Salinas Valley State Prison (SVSP) doctors were named in a 3l-count indictment charging them with grand theft by fraud, filing false claims and falsification of a public record. They are accused of billing over $160,000 for hours worked at the prison when they weren’t there. State investigators used GPS devices attached to the physicians’ cars to track their whereabouts. [See: PLN, Feb. 2009, p.29].

Dr. David Hoban allegedly convinced Drs. Randy Sid, Pedro Eva, Wade Exum and Mark Herbst to bill ten-hour days when they were only working six to seven hours. Dr. Charles Lee, SVSP’s chief of medical services, allegedly knew of the fraudulent billing scheme and went along with it. Lee and the other doctors also were indicted on four counts of misappropriation of public funds and conspiracy. The alleged overbillings included $60,445 by Hoban; $44,963 by Herbst; $24,562 by Eva; $16,800 by Sid and $13,570 by Exum.

Previously, Kelso had raised the hourly rate for prison doctors to $250 from $150 to entice qualified physicians to work for the CDCR. Evidently, the rate increase also attracted dishonest doctors who belong in prison as offenders, not as care-givers.

The future of Kelso’s $8 billion plan to build 10,000 medical and mental health care beds may hinge on the outcome of an August 4, 2009 ruling by a three-judge panel in the Plata litigation that requires California to reduce its prison population by around 43,000 prisoners within a two-year period. [See: PLN, Sept. 2009, p.36].

On September 11, 2009, the U.S. Supreme Court rejected a request by California officials to delay an order by the three-judge panel to submit a plan to reduce the state’s prison population. Also on September 11, Governor Arnold Schwarzenegger signed legislation that seeks to relieve prison overcrowding through changes to parole and early release programs. The state is still appealing the Plata prisoner release order, however, which will further delay comprehensive reforms to ensure that CDCR prisoners receive constitutionally adequate medical and mental health care.

Sources: Sacramento Bee, Associated Press, San Francisco Chronicle, Monterey Herald, Fresno Bee, New York Times, Los Angeles Times

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