U.S. to Seize State Prison Health System
A federal judge, citing experts' reports of fatal incompetence and neglect, will name a receiver for the $1.1-billion program.
By Jenifer Warren
LA Times Staff Writer
July 1, 2005
SAN FRANCISCO — A federal judge said Thursday that he would seize control of prison healthcare from the state and place it under a receiver, declaring that "extreme measures" were needed to fix a system that kills one inmate each week through medical incompetence or neglect.
U.S. District Judge Thelton Henderson said that despite repeated warnings from his court and the "good intentions" of some state officials, the Department of Corrections continues to allow sick prisoners to die "for no acceptable reason." The judge said he would soon issue a written order outlining details of the receivership and begin discussing potential receivers with lawyers in the case.
Attorneys on both sides called the decision historic, saying they believed it marks the first time in the nation that a government operation the size of California's prison medical care system is to be placed under a federal receiver.
In 1995 the District of Columbia's jails were assigned to a receiver for five years. That system has 1,700 inmates. The California Department of Corrections' healthcare network serves more than 163,000 prisoners, employs 6,000 workers and has an annual budget of $1.1 billion.
Henderson, in a quietly passionate 25-minute speech from the bench, said "horrifying details" presented in a series of hearings he convened over the last month had filled him with a sense of urgency.
He said he believed "nothing short of a receiver" could halt the deaths and other harm inflicted on California convicts who fall ill.
The judge said he was especially alarmed by the "uncontested statistic," provided by a court-appointed expert, "that a prisoner needlessly dies an average of roughly once a week."
Henderson said that anyone "would have to be shocked, as I certainly was," by that fact.
By putting the system in receivership, Henderson effectively shifts power for all decisions related to inmate care — from how many nurses should work a given shift to when a cancer patient receives treatment at a community hospital — to the federal court.
The receiver, who will report directly to the judge, will be empowered to order fixes now delayed or thwarted by Civil Service rules, collective bargaining agreements and bureaucratic red tape, lawyers said.
Attorneys said they could not speculate how long the receivership might last or what it would cost. Henderson said it would certainly be a "multiyear effort."
Bruce Slavin, who as general counsel for the Youth and Adult Correctional Agency is the top lawyer for the state's $7-billion correctional system, said "it will not be cheap." But he expressed hope that under a receiver, there would be better management of healthcare spending.
Margita Thompson, spokeswoman for Gov. Arnold Schwarzenegger, said the administration would cooperate with a receiver.
"We look forward to working with the receiver to create a sustainable healthcare system," she said.
Adult prisons are not the only piece of California's correctional system receiving outside oversight. The California Youth Authority, which houses about 3,000 of the state's most troubled juvenile offenders, is under the supervision of a special master, who monitors compliance with court-ordered improvements in inmate medical care, mental healthcare, education and other areas.
State Sen. Gloria Romero (D-Los Angeles), chairwoman of an oversight committee on corrections, attended the hearing and applauded the judge's decision.
"This is the right thing to do, the only thing to do," Romero said.
"We invest $1.1 billion in this [healthcare] system every year," she added, "and it's incredible to me that we don't get better results."
An attorney for the inmate plaintiffs, who claimed in a 2001 class-action lawsuit that prison healthcare amounted to unconstitutionally cruel and unusual punishment, called Henderson's ruling "everything we asked for" and a beacon of hope for his clients.
"As the judge said … the magnitude of the suffering could not be ignored," said Donald Specter, director of the Prison Law Office, a nonprofit firm taking the lead role in the case.
Corrections officials did not oppose appointing a receiver, though they described it in legal briefs as "a highly intrusive remedy" that should be a last resort. Slavin said Thursday that the department had recently made progress in firing incompetent doctors, hiring nurses and addressing other woes.
"The question of fixing healthcare is not one of whether but when," he said. "The administration has always been committed to getting it fixed. This [receivership] speeds it up."
Henderson's ruling was based on testimony from court-appointed experts who have been inspecting prison medical facilities as part of the lawsuit.
The case was settled in 2002, when the state agreed to overhaul inmate healthcare and phase in improvements by 2008.
Among the changes mandated by the settlement were the creation of a triage system to identify the sickest inmates and ensure they did not wait long to see a doctor and a program allowing prisoners with chronic conditions to be more carefully monitored.
The experts found few signs of progress and provided the court with chilling examples illustrating filthy conditions, ill-trained and neglectful doctors and a pattern of preventable deaths that one expert called "macabre" and unlike anything he had ever seen before.
The expert, correctional healthcare authority Dr. Michael Puisis, said medical treatment amounted to "almost anarchy" at some prisons, where disorganized or missing patient records mean that "medical providers are reduced to guessing or repeating tests and treatment already done."
Puisis, editor of a textbook on medical care in prisons, said inmates needing diagnostic tests faced extreme delays that imperiled their lives. Such delays could be caused by transportation snafus, scheduling errors, prison emergencies and a variety of other circumstances.
In one instance, a patient at Pleasant Valley State Prison near Bakersfield who needed a colonoscopy waited nearly a year and then could not undergo the test because his "mass was so large, the scope could not be passed through," according to a written summary of Puisis' testimony.
He also cited the case of an inmate at Salinas Valley State Prison who had suffered a neck injury in a fight and could not move his legs. After sticking needles in his legs, "the doctor said the patient was faking and moved his head from side to side."
The inmate is now paralyzed, and it is unclear whether the paralysis resulted from the fight or the doctor's inappropriate actions, according to a summary of Puisis' testimony in a legal brief.
In appointing a receiver, Henderson acknowledged that he was taking "perhaps the most extreme measure available" to him.
But, he added, "this court has tried to use lesser measures, and all agree that those lesser measures have failed."
A receiver still must be selected — someone with a blend of financial, correctional and medical experience suitable for the massive job.
The judge underscored this point by remarking that the perfect candidate would be someone who has operated Kaiser Permanente and "also has an MBA from Stanford or Cal and is a former warden."
Specter has asked the judge to name a temporary receiver while a search is made for a permanent one. State officials oppose an interim receiver, saying the right person can be hired within a few months.
Henderson said he is inclined to appoint a temporary receiver, because lives are at stake.
>>> <JSinton@lambdalegal.org> 7/6/05 11:39:37 AM >>>
Re: Pending U.S. Supreme Court case Goodman v. Georgia
HIV in Prisons and Jails
Lawyers briefing an extremely important Americans with Disabilities Act case now pending in the U.S. Supreme Court are in urgent need of more material evidencing discrimination against people with HIV in prisons and jails in the U.S. The topic of the brief is the history of disability discrimination in prisons and jails. The lawyers on the case have received a substantial amount of material on discrimination against people with mental illness and other disabilities, but need more on the experiences of people with HIV in prisons, especially examples of extreme and severe harm to people with HIV. Your assistance is sought because this material is crucial to the Supreme Court brief being filed, and we know it's out there.
We are seeking examples of:
* lack of access to medication and/or medical care
* segregation of people with HIV
* other discrimination against people with HIV
Solid examples of concrete, severe harm are the most useful, in any of the following formats:
* legislative findings
* newspaper articles
* reports published by government, private, or public interest groups
* published legal decisions
* unreported legal decisions
Materials and data from any time period are useful.
See below (earlier request for materials from the Bazelon Center) for further details. If you have any materials, please send immediately to Heather Trew, contact info below (please do not send to Bazelon due to time considerations).
Heather M. Trew
Jenner & Block LLP
601 Thirteenth Street, N.W. Suite 1200 South
Washington, DC 20005-3823
From: Ira Burnim & Alsion Barkoff, Bazelon Center for Mental Health Law
Date: June 1, 2005
Subject: Request for Information on Disability Discrimination in Prisons and Jails -- for Goodman v. Georgia and United States v. Georgia, U.S. Supreme Court
Issue in the Supreme Court
The U.S. Supreme Court has taken another case challenging the constitutionality of Title II of the Americans with Disabilities Act (ADA). At issue is whether Congress has the constitutional authority to require states to pay money damages for violations of Title II of the ADA in their prisons. A negative ruling might suggest that Congress did not have the power to enact many of the core provisions of Title II, including the community integration provisions.
The plaintiff in this case is an inmate with paraplegia who uses a wheelchair for mobility. He alleges that the state has violated the ADA by holding him for more than 23 hours a day in a cell that is so narrow he cannot turn his wheelchair; by excluding him from counseling, classes, and religious services because of his disability; and by failing to make toilet and bathing facilities accessible.
Since the decision in Tennessee v. Lane, which narrowly held that individuals could sue states for money damages for denial of access to courthouses, the federal appellate courts have been split over whether individuals can sue the state for money damages in other contexts under Title II of the ADA.
Information Needed – Disability Discrimination in Prisons and Jails
Brief writers in the case are seeking information on disability discrimination in prisons and jails. This information may relate to individuals with physical disabilities, mental illness, or developmental disabilities. Discrimination against prisoners with disabilities may involve, for example, denial of access to prison programs, denial of adequate medical or mental health services, failure to make prisons and jails physically accessible, punishing prisoners with disabilities more severely than other prisoners, or the criminalization of individuals with mental disabilities (e.g., individuals with mental disabilities imprisoned for conduct resulting from failures of public service systems).
Brief writers seek especially:
I. Published reports -- by government agencies, public interest groups, journalists, or others -- detailing disability discrimination in prisons and jails at the state and local level. Self-evaluations performed by the state might have such information.
II. Information about lawsuits brought to challenge disability discrimination in prisons and jails in your jurisdiction, favorable results in such lawsuits (by judgment or settlement – in an officially citable form if possible), and the number of complaints public or advocacy agencies have received about disability discrimination in prisons and jails.
III. "Horror stories" about disability discrimination in prisons and jails – stories that would shock judges or lay people. It would be best if these are described in judicial opinions, pleadings, or published reports or articles that could be cited.
IV. Court decisions describing disability discrimination in prisons and jails.
V. Information about situations in which individuals with mental disabilities have ended up in prison due to a lack of mental health or mental retardation services (i.e., the criminalization of people with mental disabilities).
Ira A. Burnim
Bazelon Center for Mental Health Law
1101 15th St. N.W., Suite 1212
Washington, DC 20005
(202) 467-5730 ext.129
(202) 223-0409 (fax)
HIV Project Staff Attorney
Lambda Legal Defense and Education Fund
120 Wall St., Suite 1500
New York, NY 10005
(212) 809-8585, ext. 241
(212) 809-0055 (fax)