The Ninth Circuit ruled unanimously on January 29, 2020 to uphold a lower court’s contempt order fining the Arizona Department of Corrections (ADC) more than $1.4 million for failing to improve the health care provided to people in Arizona’s prisons in Parsons v. Ryan (now known as Parsons v. Shinn).  The Prison Law Office, ACLU National Prison Project, ACLU of Arizona, Arizona Center for Disability Law, and Perkins Coie represent incarcerated people in the case.

The parties settled the case in 2014, with a Stipulation that outlined multiple performance measures to evaluate the delivery of health care.

In June 2018, federal Magistrate Judge David K. Duncan of the Arizona district court found ADC and then-director Charles Ryan in contempt of court for the department’s widespread failure to comply with the terms of the settlement, and failure to provide critical areas of health care.  Judge Duncan fined the state $1.4 million, with the money to be used to improve health care, and ordered .  “The inescapable conclusion is that defendants are missing the mark after four years of trying to get it right,” Judge Duncan wrote in his 2018 contempt order. “Their repeated failed attempts, and too-late efforts, to take their obligation seriously demonstrate a half-hearted commitment that must be braced.”

The Court of Appeals unanimously ruled that it was within Judge Duncan’s power to find ADC and Director Ryan in contempt of court, and to have an expert review and identify problems in the delivery of health care.

Judge Duncan also had denied ADC’s request to terminate monitoring of many performance measures.  Judge Duncan had found ADC’s monitoring system unreliable, and directed the parties to nominate an expert to evaluate how ADC monitors its health care providers.  The Court of Appeals again upheld Judge Duncan’s orders.  The Ninth Circuit also upheld Duncan’s order that the corrections department re-install health needs request boxes so people can request medical treatment or prescription refills and report symptoms to prison staff.

U.S. District Judge Roslyn Silver took over the case after Duncan retired in 2018, and she issued orders appointing correctional medicine specialist Dr. Marc Stern as an independent expert to advise her on how ADC can provide adequate health care to incarcerated people, and whether or not the current system ADC uses to evaluate their private health care vendor adequately reflects the delivery of health care.  The state also appealed Judge Silver’s orders, saying she had no power to appoint Dr. Stern.  The Ninth Circuit also rejected this argument, and said it was fully within her power to appoint an independent expert.

Dr. Stern filed his report with the court on October 4, 2019.  In it, he identified multiple barriers to ADC providing constitutionally adequate care, and supports his findings with almost 40 pages setting out examples of inadequate care leading to injury and death.  Dr. Stern’s report found that there is a “severe underfunding” of health care services in ADC, and it is “significantly understaffed” for many health care positions, especially higher-level health care positions.  He found that much of the process for obtaining specialty care for incarcerated patients to be broken, and recommended that the Court override the state law capping reimbursement rates for outside specialist care.  Dr. Stern’s report also analyzed how ADC monitored its contractor’s compliance with the Parsons Stipulation.  He concluded that there was a failure to look at the quality of health care provided to patients, but rather a focus on time frames and checking boxes that did not look at the clinical decisions and judgments of the health care providers.

His analysis showed that prison health care is underfunded by more than $70 million per year, using state Medicaid per capita spending as a benchmark. He recommended that additional funding be used to increase the number of health care staff, reconfigure the mix of staff to have more higher level staff rather than overreliance on mid-level providers and nurses, increase salaries, increase spending on specialty care, and overhaul the electronic health record system that is inefficient and “poorly designed.”  Dr. Stern recommended that the penalty paid by the vendor (now Centurion) to ADC for vacant health care positions “be an amount significantly greater than the dollar amount of unpaid wages” in order to motivate the vendor to keep positions filled.

Finally, Dr. Stern recommended that the Court override the state law that mandated privatization of prison health care, because “in my opinion, privatization of health services at ADC is an important barrier to compliance” with the Stipulation and creates “risks to public safety.”