Federal Judge Considers Independent Monitor For Prison Health Care Case

By Jimmy Jenkins
Published: Tuesday, June 19, 2018 - 5:20pm
Updated: Tuesday, June 19, 2018 - 7:30pm

Jimmy Jenkins/KJZZ
The Sandra Day O'Connor Federal Courthouse in Phoenix.

A federal judge has been conducting hearings to assess the validity of a state-run monitoring system overseeing the state’s prison health care contract. Last week, attorneys representing the state called several witnesses to testify in Magistrate Judge David Duncan’s court in an attempt to rebut allegations made against the Arizona Department of Corrections and Corizon Health.

Always A Mad Dash

In previous testimony, a former Corizon employee told the court about instances she witnessed of insufficient health care at the Eyman State Prison in Florence. Its medical director, Dr. Rodney Stewart, testified about the conditions at the prison. He was then cross-examined by the American Civil Liberties Union’s David Fathi, one of the attorneys representing inmates.

While Stewart defended the practices at his clinic, he said his team faced challenges to deliver proper care. At one point, Stewart said he was the medical director for two prisons at the same time, while also seeing patients.

Stewart confirmed previous testimony about high levels of cancer and infectious disease in the inmate population. He told the court of frequent backlogs of chronic care patients, which at one time totaled more than 600. Stewart said staff was stretched so thin they had to work weekends in what he called a “blitz” just to make a dent in the backlog. Stewart said he believed the current backlog for chronically ill patients at the Eyman prison included more than 100 patients.

Stewart said he had been working voluntarily to cover the backlogs, in an attempt to meet mandated health care performance benchmarks each month. “It’s always a mad dash,” he told the court.

Sometimes Stewart said he had to drive to a Phoenix prison on the weekend to get medication to take back to Florence for patients.

Fathi asked Stewart to read several emails from a clinical coordinator requesting Stewart’s employees cancel labs and specialty referrals. In a request, similar to a previous email disclosed by Dr. Jan Watson, a Corizon employee acknowledged they were told to not order labs because it would “put them out of compliance.”

Stewart told Fathi he was not aware of such an instruction.

“Is such an instruction medically appropriate?” Fathi asked.

“Not appropriate, no,” Stewart said.

In another email regarding compliance with the state monitoring bureau, a clinical care coordinator asked a provider to cancel a request for treatment.

“We only have a 60-day window for routine consults and 30 days for urgents to send them out,” the provider wrote. “If they are over that allotted amount of time we get dinged on our CGAR measures and fined every day until they are seen.”

Several more emails read during Stewart’s cross-examination revealed a sense of helplessness among his fellow Corizon employees.

An assistant facility health administrator wrote that she was “in desperate need of assistance” to reduce a backlog of patients. “In the last month and a half we have sent out three inmates who were on the backlog at Cook Unit to local ER with life threatening issues, which correlate with their chronic conditions, one of which expired at the hospital,” she wrote.

Another email from a provider at Eyman to Stewart expressed great frustration with insufficient patient care. “I have been emailing the world about this problem,” the provider wrote.

Upon hearing the correspondence, Judge Duncan responded, “I have to say, it’s staggering to me. This happened well after I’ve had repeated assurances from defendants that care would be provided.”

“It’s not just one-offs anymore,” Duncan said of the reports of inadequate health care. “Its cumulative, overpowering and sickening.”

Duncan said it was no wonder that Stewart was unable to keep up.

“Dr. Stewart is but one person who is stretched between two yards of 5,000 people each,” Duncan said.

The judge contended that the provider referenced in the email was only “screaming” for the most medically emergent cases.

“What about the people on the average day who come in and they have cancer and they’re told they need to see a doctor?” Duncan asked. “Who’s screaming for them?”

Monitoring System Called Into Question

Stewart’s testimony also called into question the main sources of information used by the prison health care system, a computer system called Pentaho.

Under questioning from defense attorney Rachel Love, Stewart told the court, “The Pentaho report is a notoriously inaccurate document. It’s not always a reflection of what is actually there.”

Stewart described several instances where a patient had actually been released from prison but they were still showing up in the report.

However an ADC employee testified she thought the Pentaho report was accurate and said her work relied heavily upon it. Erin Barlund works for ADC at the Health Services Contract Monitoring Bureau as a health services coordinator. In addition to supervising employees, Barlund said she monitors health care performance measures.

Barlund testified she thought the Pentaho report was “extremely accurate.”

Jimmy Jenkins/KJZZ
"Smart cards" issued to Corizon staff.

“You believe Pentaho produces very accurate reports?” Love asked.

“Yes, I do,” Barlund said.

Prison law office attorney Corene Kendrick said she believes Stewart’s testimony showed the Pentaho reports are not reliable.

“It throws into question the validity of the data and how it’s being tracked,” she said.

“What we’re hearing is that there are limitations and problems with the data points, and it appears the Pentaho reports are not considered accurate by people at Corizon.”

Attorneys for the state produced a new set of so-called “smart cards” that Corizon staff have been issued to help them comply with health care performance measures. But after reviewing a list of measures that Corizon and ADC continue to violate, Duncan questioned if laminated cards were the answer to get the staff to comply.

“I have this nightmare scenario of these smart cards hanging around their necks ad infinitum,” he said.

ADC Employee Violates Federal Rules Of Testimony

Dr. Nicole Taylor is the ADC mental health director. She told the court she has a Ph.D. in clinical psychology as well as a law degree and is a member of the Arizona State Bar Association.

Attorneys for the state called Taylor to testify about her role overseeing mental health treatment and the monitoring she performs.

But attorney Dan Struck told the judge that Taylor had been inappropriately reviewing transcripts in advance of the hearing.

After addressing counsel for both parties privately in his chamber, Duncan told the court he was considering filing a complaint against Taylor with the State Bar Association.

“Dr. Taylor is a licensed member of the state Bar and should know better,” Duncan said. “This is troubling.”

Duncan then told Taylor, who frequently sits and confers with the defense team in the Parsons case, he had seen her make gestures which he took “to be your best effort to influence the testimony” of other witnesses.

“I have seen you mouth words to witnesses on the stand,” Duncan said to Taylor.

He told the court he had not brought the issue up before because he believed they could be isolated incidents.

Attorney Dan Stuck apologized to the court for Taylor’s actions.

“As lead counsel, I take full responsibility,” Struck said.

“Normally with a lay person you would hold the lawyers accountable,” Duncan said, turning to Taylor. “But you’re a lawyer and you should have known better and you shouldn’t have done it.”

By reviewing transcripts of prior testimony, Taylor violated Rule 615 of the Federal Rules Of Evidence.

Michael Saks, a professor at Arizona State University’s Sandra Day O’Connor College of Law, says the purpose of Rule 615 is “to keep certain witnesses out of the courtroom so they cannot hear the testimony of other witnesses.”

Saks said this prevents witnesses from shaping their own testimony in response to what others have said.

“The main job of a trial fact finder (whether that is a judge or jury) is to evaluate the credibility of witness testimony,” Saks said. “If you tell a story in my presence, and then I repeat the story you’ve told, that is not a very good test of whether I saw and heard the same things you did.”

Saks said having witnesses testify independently of each other allows the fact finder to watch for inconsistencies and contradictions.

“If there aren’t many contradictions, that would be more persuasive corroboration that what you and I say happened is what happened,” he said.

A Sense Of Cynicism

Attorneys for the state called Vanessa Headstream to the stand to testify about her work at ADC as a program evaluation administrator with Health Services Contract Monitoring Bureau.

“My role is to ensure health care is delivered in a timely manner,” she told the court.”

Duncan asked Headstream if, when performing her monitoring duties, she looked for potentially falsified documents and altered dates.

“Do you have a heightened sense of cynicism?” Duncan asked.

“I think I do,” Headstream replied.

She testified that when Corizon was found to be out of compliance with a health care performance benchmark, she would work with Corizon to help them reach compliance if possible.

Who Can Pull The Most Teeth

Attorneys for the plaintiffs submitted a list of concerns that arose from recent prison tours.

Attorney Kirstin Eidenbach submitted a declaration that included concerning allegations about dental care at the prisons.

“We have been hearing about an extraction-only policy,” Eidenbach said in an interview after the hearings.

Eidenbach said this type of policy was not unheard of in Arizona prisons. She said in previous visits she interviewed “23-year-old guys with no teeth.”

In a recent tour of the state prison in Yuma, Eidenbach and other representatives said they had “received multiple reports that no one is offered fillings for dental cavities.”

“More disturbing,” Eidenbach wrote in a declaration to the court, “are the reports that the dentists joke in front of patients about how many teeth they have pulled and have contests to see who has pulled the most teeth in a given day or a given week.”

Eidenbach called the alleged behavior “grossly unprofessional” and asked the court to investigate.

Mentally Ill People Housed In Cages

Struck told the court he believed many of the concerns raised by the plaintiffs were outside the scope of the Parsons v. Ryan prison health care settlement.

Duncan disagreed, saying things like living conditions had an impact on the health of the inmates.

“I think it’s reasonable to see how these inmates are detained,” Duncan said.

Plaintiff’s attorneys raised concerns about the housing of seriously mentally ill inmates in small cages, built onto the ends of prison cells at the Phoenix prison after previous testimony given by former Corizon employee Angela Fischer.

Attorneys for the state fought against the release of pictures of the mental health units, citing the possibility that they could be published by KJZZ.

Duncan said of the pictures of the cages, “One can’t look at that and not wonder whether or not that’s an appropriate way to deal with someone on suicide watch.”

Staffing Expert Recommends More Staff

Duncan ordered an outside expert to figure out why Corizon Health can’t fulfill its obligation to fully staff clinics in Arizona prisons.

The state just signed a one-year contract extension with Corizon Health for $188 million. Yet at no time during 2017 were all of the positions in the state contract with Corizon Health full. So Duncan asked an outside group to figure out what’s going wrong.

B.J. Millar of the Advisory Board told the court that his months-long evaluation “illustrates a need for more bodies, not paying the bodies you have more money.”

Milar said staff reported they are stretched too thin and suggested Corizon develop better processes to recruit and retain more employees.

Duncan ordered the state to pay for the study, which cost $143,000.

Millar made several recommendations.

“Recruitment and retention are an ongoing issue, resulting in staff being stretched too thin to provide coverage,” he said.

Millar’s report noted “new employees without prior experience in correctional medicine tend to be more difficult to retain and remote areas and difficult work environments also create barriers to recruitment.”

The report also indicated that training and onboarding is inconsistent.

Millar suggested that Corizon establish a “permanent regional provider pool to provide coverage for staffing gaps.”

He called it proactive hiring.

“You’re anticipating a certain amount of hiring that will be necessary,” which he partially attributed to a turnover rate of greater than 40%.

Millar’s report also suggested implementing changes based on employee feedback such as dedicated space for psychiatric visits, increased computer access, and a simplified process for scheduling.

After the presentation, Duncan thanked Millar for his services.

“You told us what I knew, but I did not know it for sure,” Duncan said of the staffing shortages. “And I had lawyers for the defendants who told me this was not a problem.”

Duncan Retirement And Impending Ruling

Citing medical concerns, Duncan has announced he will retire June 22. He is expected to tour at least one state prison during his last week on the case. Duncan repeated again in court that he intends to fine the state for failing specific health care performance measures.

“The stipulation doesn’t give me the power to address this obvious need,” Duncan said of the staffing shortage in state prison health care positions. “And so having been blocked from that most helpful and direct measure, I have to embark on alternatives. My order will be one method to deal with that.”

The latest court filings in an ongoing federal court case show Arizona could now be facing more than $1 million in fines.

Plaintiff’s attorney Corene Kendrick says she believes the evidence they presented demonstrates a need for an impartial outside agent.

“We need an independent expert who knows about auditing to make sure that there’s consistency across the board and that the source documents that are being used by the state to ensure compliance are complete and accurate,” Kendrick said.

Duncan could appoint an independent monitor to oversee the health care contract if he decides the state’s system is not doing the job.

Editor's note: A previous version of this story stated attorneys for the defendants submitted a list of concerns that arose from recent prison tours. This story has been corrected to report that they were attorneys for the plaintiffs.

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