Arizona prisons can't find qualified doctors. A judge says it's because they won't increase pay

A federal judge has ruled against Arizona — again — in an ongoing lawsuit over the healthcare the Department of Corrections, Rehabilitation and Reentry provides.

This time, the judge says Arizona cannot hire doctors who don’t meet certain standards that had previously been agreed on.

Jim Small of the Arizona Mirror has written about this and joined The Show to talk about it.

Full conversation

MARK BRODIE: Jim, good morning.

JIM SMALL: Good morning, Mark.

MARK BRODIE: So what exactly is the state trying to do that the judge says, "Uh-uh"?

JIM SMALL: Yeah, so first some context, right? This is part of a 14-year-long class-action lawsuit that prisoners brought against the state of Arizona alleging that their — the healthcare treatments that were provided to them inside of Arizona prisons are unconstitutional and violate the Eighth Amendment rights to not have to suffer cruel and unusual punishment. Court has agreed with that a number of years ago. The court ruled that, yes, that is the case, this healthcare is unconstitutional.

So three years ago, all of the parties entered into an agreement. And among the many provisions of this agreement were that when the state goes to hire doctors, or its private contractor goes to hire doctors, they have to be board-certified or eligible to be board-certified in internal medicine and family practice medicine, one of those two specialties.

Essentially, the state came back earlier this year and said, "Look, we’ve tried. We haven’t been able to hire anybody. We’ve screened more than 60 applicants who are otherwise qualified. Maybe they’re certified in emergency medicine or they’re certified in some other specialty, but they don’t meet these qualifications."

This proves — their argument was, "Look, this proves that we’re not able to actually meet this, the standard is too high. What we want to do is we want to be able to hire half of the doctors who don’t meet those standards we agreed to, and the other half we’ll go out and we’ll continue trying to meet those standards."

The judge — the federal judge in this case — came back and said, "No, that’s — you know what? You guys are not actually doing what you should be doing. You’ve been told over and over and over again for years that you need to increase pay. And the solution to this problem is not to lower the standards for the doctors you hire, the solution is to actually pay the doctors higher wages so that way you can attract better-qualified doctors."

MARK BRODIE: Is there reason to think that if the state were to offer more money, that more board-certified or board-eligible physicians in those two sort of general specialties would be willing to apply and take those jobs?

JIM SMALL: Well, certainly the court’s experts — an expert retained by the court to provide the court advice — has said so, as well as the court-appointed monitors, who a number of years ago were — again, the judge appointed them to essentially be her eyes and ears inside of the prison system, and they’re there watching what’s happening and seeing how everything is unfolding and what the state is doing to try to meet its obligations here. Everyone has said for years, "You need to not just increase pay, you need to aggressively increase pay."

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And what the plaintiffs’ attorneys and what the judge ended up basically saying is like, "Look, you haven’t done that. ... Since we signed this agreement three years ago, there’s been one pay raise. It was for $2 an hour for these doctors, and that was it. And that doesn’t meet aggressively increasing." And that increase honestly happened two years ago, about two and a half years ago.

And the judge was absolutely really blunt in her response to the state, which was essentially saying, "No, you’re not acting in good faith, because you haven’t actually done what you’ve been advised to do. You’ve ignored this advice at every turn because you don’t want to spend the money."

MARK BRODIE: Do we have a sense of what an aggressive pay raise — I mean, $2 doesn’t seem terribly aggressive. Do we have a sense of what an aggressive pay raise might look like?

JIM SMALL: No, it hasn’t really been spelled out. But I think, very clearly that the court wants to see some actual effort made into increasing compensation as a way to attract a different pool of candidates. That may well be something that happens in the sometime in the near future.

The court on Friday appointed its formal receiver for the state prison healthcare system and granted her with a wide latitude of powers. Among them are determining the budget for this. And if that budget doesn’t fit within the budget approved by the Legislature and the Governor’s Office, the judge indicated that she may well just decide to overrule that and basically force the state into spending the money that it takes in order to come into compliance with the U.S. Constitution.

MARK BRODIE: Oh, wow. So that could have potentially significant implications for the budget for the fiscal year that started a few weeks ago.

JIM SMALL: It could. And the judge really singled out a couple of other laws as well that she said, "Look, these laws, everyone, all of the experts, all the monitors are saying that these laws are preventing the state, they’re roadblocks for the state to actually do what it’s supposed to do."

Among them was the requirement that the state privatize its prison healthcare system instead of running it in-house. And she was basically said, "I am very willing to overrule these laws and to essentially strike them down and say that they cannot be enforced in order to settle this lawsuit and meet the terms of it."

MARK BRODIE: Jim, do we have a sense of why it is that the agreement between the state and the plaintiffs was that the providers would be board-certified or board-eligible in these specific specialties, in either internal medicine or in family practice? Is it a problem if somebody, for example, is board-certified in emergency medicine? Is that a less good or maybe less relevant type of care that the inmates are receiving?

JIM SMALL: I don’t think it’s less good, but it is less relevant to a lot of the problems that have been identified over the years of this litigation and the treatment — and, frankly, the lack of treatment for a lot of these inmates, and some of the illnesses that have gone untreated that were very catchable, and that were a combination of overworked and underqualified healthcare providers in the prison is essentially what the court ruled led to a lot of these problems.

And so the solutions there are to get people who are essentially experts, field experts in internal medicine, in kind of your general practice stuff where you’re going to be able to catch most things. And if you need to, you can refer out to a specialist.

But there’s not as much emergency medicine in a prison setting as there is just routine medicine. The same way all of us, when we go to the doctor, we’re very rarely going to the emergency room, but we are often going to a general, going to our GP or going to our primary care physician, and that’s really what they wanted to have in the prisons.

MARK BRODIE: OK. And Jim, before I let you go, what was the state’s response to this? Like, are they going to aggressively raise pay and continue searching for these kinds of providers?

JIM SMALL: I did not get a response from the state. The Governor’s Office declined to comment, and the atate Department of Corrections did not respond to my request for comment. But I think ultimately at the end of the day, the solution here is going to be that receiver that was appointed and who is given basically all of the powers of the Corrections Department director within the realm of the healthcare system.

And that’s what the court identified as the only workable solution back in February when the federal judge announced that she was going to appoint a receiver. And that seems really, I think — the state I don’t think is going to lift a finger. They really haven’t done a whole lot to try to remedy any of this over the past decade and a half. And I don’t think they’re going to. I think they’re going to have to be forced into doing it by a receiver.

MARK BRODIE: Interesting. All right. That is Jim Small with the Arizona Mirror. Jim, thanks as always. Appreciate it.

JIM SMALL: My pleasure, Mark.

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