by Matt Clarke

On July 16, 2021, an Arizona federal court issued an order rescinding its 2015 approval of the settlement agreement (“Stipulation”) in a class action civil rights lawsuit challenging the adequacy of medical, dental, and mental health care in the Arizona Department of Corrections (DOC) as well as conditions of confinement in the DOC’s maximum custody units, including claims of inadequate nutrition, lack of opportunities for physical exercise, and extreme social isolation and environmental deprivation.

The lawsuit was filed in 2012 and is formerly known as Parsons v. Ryan. After two and a half years of litigation, the court approved the Stipulation put forth by the parties. In it, the DOC agreed to changes in health care and maximum custody. Implementation was monitored and assessed against specific performance measures. The monitoring would end if the DOC achieved 75% compliance the first year, 80% compliance the second year, and 85% compliance thereafter. The health care performance measures were the National Commission of Correctional Health Care standards, which were also used in DOC contracts, first with Corizon and later with Centurion.

“Over the past six years, Defendants have consistently failed to meet many of the Stipulation’s critical benchmarks. Beyond these failures, Defendants have in the past six years proffered erroneous and unreliable excuses for non-performance, asserted baseless legal arguments, and in essence resisted complying with the obligations they contractually knowingly and voluntarily assumed. The court has repeatedly used the remedies authorized by the Stipulation and often exercised forbearance rather than imposing sanctions.”

When the Stipulation was agreed upon, Corizon was the contracted provider of prisoner health care. Yet, it employed only seven staff physicians and five psychiatrists to treat over 40,000 DOC prisoners. Lead defendant Richard Pratt testified “Corizon may well have decided to pay the [contractual] fine [for understaffing] rather than fill staffing positions.”

High Cost, Low Performance Health Care

Pratt’s testimony is plausible because the court noted that Corizon was paid so much that even fines as high as $1,000 per day for each noncompliant performance measure were insufficient to coerce compliance. Indeed, the court sanctioned defendants twice, once for $1.445 million and again for $1.1 million without subsequent compliance improvement.

The DOC’s contractual sanctions against Corizon were $5,000 per month for each noncompliant performance measure, but the maximum sanctions were capped at $90,000 a month, a tiny amount compared to the $407,000 Corizon received each day under the contract. Why should a company receiving over $148 million annually worry about sanctions having an annual cap of barely over $1 million?

Corizon could be fined to the max, and still reap $147 million in payments each year. So, its strategy appears to have been to provide some health care, but as little and as cheaply as possible and always be willing to accept prisoners’ suffering and deaths to increase its profit.

Little changed when the health care contract was switched to Centurion in April 2018. Centurion receives $657,952.72 per day ($240,143,617.80 annually) yet has been equally unable or unwilling to meet the performance measures. There were 178 monthly performance measures that were noncompliant between March 2020 and December 2020. This despite defendants’ own admission that their 2020 compliance numbers were inaccurate and plaintiffs’ complaints that the compliance number have been inflated ever since the Stipulation was signed.

The Corizon Way, “Let Him Die”

Examples of Corizon’s business practices were given in the testimony of former temporary Corizon primary care physician Dr. Jan Watson. While working at the Eyman Complex, Watson was told to cancel two infectious disease consults because the consults had been approved more than 30 days earlier and they were going to be fined $1,000 a day for a tardy consult. She was asked to cancel a cardiology consult for similar reasons. Thus, inadequate performance sanctions did not speed the outside consultations, they just led to the consultations being canceled.

Watson also testified that her supervisor, Dr. Stewart, told her that, if a prisoner who had complained of chest pain and had an abnormal EKG came back from the hospital, “keep him comfortable and let him die because none of his arteries were bypassable.” When she reviewed the prisoner’s hospital records, she discovered that the arteries could be bypassed. However, when she raised the issue, Corizon staff accused her of not doing things “the Corizon way” which she believed meant spending less time with patients, and ordering fewer medications and requesting fewer outside consultations.

Monitoring physician Dr. David Robertson reviewed prisoner deaths and found 17 cases with failure to recognize symptoms, delays in health care access, and failure to address requests for care compromised health care.

The DOC and Corizon also used tactics to frustrate accurate performance measures. For instance, a dozen measures involved recording a starting point when a prisoner placed a health needs request (HNR) form in an HNR box. The HNR boxes were removed, making it impossible to give accurate compliance results.

Maximum Custody

The Stipulation required that the DOC implement a multi-step system for maximum custody housing with specified minimum amounts of out-of-cell time to be offered per week at the various step levels. In a 2020 hearing on the matter, the court found the DOC’s compliance numbers were inaccurate and ordered production of evidence showing prisoners’ average length of stay at each custody level. The DOC never produced the documentation.

The court held that the record demonstrated maximum custody prisoners were not offered appropriate recreation blocks consistent with their step levels. Defendants claimed they were in compliance when clearly they were not.

Mental Health Care

The defendants also tried to pass off encounters with mental health care providers which were of three, five, or seven minutes in duration as adequate treatment despite noncompliance with a previous court order that a mental health professional evaluates whether a visit of less than ten minutes was meaningful and appropriate. The court expressed concern with three prisoner suicides which occurred between January 5 and February 3, 2021, after very brief visits.

Withdrawing Approval

The court found that the defendants always knew that rescission was possible and held that it had the power to order resumption of litigation following a settlement when one of the parties’ behavior amounts to “repudiation” or “complete frustration” of the settlement. It held that defendants’ lack of good faith and fair dealing amounted to a material breach, complete frustration and repudiation of the Stipulation that was unlikely to change in the future and had deprived plaintiffs of the Stipulation’s benefits in ways that cannot be compensated. Further, resuming litigation would not materially prejudice defendants and had been requested by plaintiffs. Therefore, it ordered relief under Federal Rule of Civil Procedure 69(b)(6), rescinding its approval of the Stipulation and set the case for trial. See: Jensen v. Pratt, 2021 U.S. Dist. LEXIS 163895.