As the Arizona Department of Corrections (DOC) attempts to comply with stipulations in the Parsons v. Ryan settlement with state prisoners, it has been monitoring its own progress.
Even though private contractor Corizon Health’s own numbers have shown multiple and repeated failures, Judge David Duncan likened the arrangement to the fox guarding the hen house.
“There is always the concern that you could have implicit, inherent biases that even if they are not malicious, would exist,” Duncan said, suggesting the potential need for an independent audit.
Duncan confers with the plaintiffs and defendants in the case every month to check the status of the state’s compliance with more than 100 stipulations or health care performance measures agreed to in the settlement.
The state has made progress in many of the wide-ranging categories of the stipulations. But plaintiff attorneys say the few that are remaining are still of grave concern.
Judge Duncan has repeatedly said most of the issues come down to staffing.
DOC contracts with Corizon to provide health care services in Arizona prisons. Corizon has left many critical, provider-level positions unfilled at prisons across the state, sometimes for months at a time.
Duncan has said at past hearings that his role overseeing the settlement does not allow him to compel the state to hire more people. But he believes he does have the power to tell the state and its contractor how much to pay those employees.
Consultant Proposes Conducting A Study
At a hearing Wednesday, Duncan verbally agreed to hire an outside expert to perform a review of health care staffing at all state prisons.
Private consultant B.J. Millar proposed he conduct a study looking at all “provider level” positions in the health care system.
“We would look at everyone above a nursing level for medical and behavioral health,” Millar said. As the study moved forward, Millar said they could also look at nursing staff.
The options for the study would range in cost from $150,000 to $225,000. Millar said the study would take five to six months while a team looked at data from over two years. He told the court he could end up recommending anything from rewriting job descriptions to increasing pay.
Depending upon those recommendations, Duncan referenced the Supremacy Clause of the Constitution when discussing his power to intervene in the case.
The judge said he thought the state should have to pay for the study.
“We will have a subsequent hearing as to why it shouldn’t pay the entire cost,” Duncan said. “But the court’s present view is that this is a dilemma created by the defendants and it is a necessary tool to try to accomplish what the defendants have not been able to accomplish on their own,” he added.
Attorney Representing Defendants Argues Against Paying For Study
Attorney Daniel Struck, representing the defendants, said he did not think the state should have to pay for the study. He argued that a study should take a more narrow focus and it was not necessary to evaluate the prisons that were already meeting the performance measures.
David Fathi represents the plaintiffs in the settlement. He said the failure to appropriately staff the prisons is a self-inflicted wound and should be paid by the state.
“Prisoners are the poorest people in society,” Fathi said. “It’s just not practical or equitable to expect them to equally share with a billion-dollar state agency the cost of a court-appointed expert who, as the judge pointed out, needs to be appointed only because of the defendants’ persistent failure to do what they promised to do.”
Judge Duncan also elaborated on an order he filed Tuesday warning the state he would hold the defendants in civil contempt and impose sanctions if they continue to fail to meet the stipulations. The penalties would be issued at $1,000 for every violation of the stipulations. Plaintiffs in the case have previously estimated those fines would be in the millions of dollars.
In January 2018, the judge will hold a hearing in which the defendants will be forced to dispute the fines or accept the sanctions and pay them. The judge said he would like to use those potential fines to fund an independent audit of the Arizona Department of Corrections.
Referring to data provided by DOC to the court in the past, Duncan said, “At some point, it might be necessary to verify that the information provided is correct.”
Corizon Has Paid State More Than $3.3 Million For Staffing Offsets
Corizon has already paid steep fines to the state after failing to meet certain provisions of its contract. Attorneys for the state confirmed Wednesday that Corizon has paid the state more than $3.3 million for staffing offsets — not hiring enough people — from the beginning of its contract to August 2017.
Corizon also has paid $1.4 million to the state for failing to meet performance measures. However, those fines were capped at $90,000 each month, saving the company nearly $6 million. Had there been no cap, Corizon would have instead paid the state $7.3 million.
The state recently agreed to a contract amendmentthat will lift those caps and install incentives for Corizon to reach its performance benchmarks.
Duncan said he hoped the state would be able to use the fines as an investment in providing better care in the future.
