United States District Court, D. Arizona
ORDER
HONORABLE ROSLYN O. SILVER SENIOR UNITED STATES DISTRICT
JUDGE
The
conclusion of Dr. Marc Stern's analysis and the receipt
of his report requires determining how this case will
proceed. As set out below, the history of Defendants'
behavior after a settlement agreement was reached means the
parties will be required to select from three options
regarding the future course of this case.[1]
BACKGROUND
In
October 2014, the parties, apparently in good faith, entered
into a stipulation to settle this litigation. (Doc. 1185).
That stipulation required Defendants “comply with the
health care performance measures” the parties agreed
upon. (Doc. 1185 at 3). The stipulation did not contemplate
perfect compliance with each performance measure but it did
require that, as of two years after the stipulation's
effective date, Defendants would comply with every
performance measure at least 85% of the time. Now,
approaching the five-year anniversary of the
stipulation's acceptance, Defendants are in violation of
that agreement because they are not complying with every
performance measure 85% of the time. And crucially, the
failing performance measures relate to the core aspects of
health care delivery: provision of medication, access to
specialty care, and ensuring adherence to outside
providers' recommendations.
Based
on Defendants' continued non-compliance with the
stipulation and questions regarding the accuracy of the
compliance numbers themselves, the Court appointed Dr. Stern
to assess the manner in which Defendants were monitoring
their compliance and to assess Defendants'
“substantial noncompliance with critical aspects of
health care delivery.” (Docs. 3079, 3089). On October
2, 2019, Dr. Stern provided his report. His report confirms
the Court's long-held belief that pervasive issues have
precluded accurate monitoring of certain performance measures
and that even the low compliance levels reported in some
instances may be worse. The report sets forth recommendations
to ensure accurate monitoring of performance measures as well
as recommendations that certain performance measures be
retired and others be altered to more realistically capture
whether required health care is being provided to prisoners.
The report also describes in detail how Defendants'
behavior creates a significant risk of serious harm to
prisoners' health and concluded that additional funding
would be necessary to provide required healthcare. The Before
delving into the specifics of Dr. Stern's report, it is
imperative that the Court determine whether to continue down
the path of trying to bring Defendants into compliance or,
with the parties' agreement, switch to an alternate
path.[2]
ANALYSIS
Dr.
Stern's report raises serious questions whether it is
realistic or appropriate to expect that Defendants will
perform the obligations they accepted years ago. And given
that Defendants' continued failure to comply with crucial
performance measures appears to pose a significant risk of
serious harm to plaintiffs, the Court cannot delay any
longer. (Doc. 3379 at 72). The Court sees three possible
options.
A.
Enforcement of Stipulation
The
first is for Defendants to reaffirm that they wish to comply
in good faith with the stipulation such that the Court should
pursue enforcement efforts to bring Defendants into
compliance. This option would require the Court go through
Dr. Stern's recommendations with immense care and decide
which of those recommendations should be adopted and which
rejected. This option would also require the Court become
much more active in ensuring Defendants perform their
obligations. In particular, the Court would have to determine
what to do when Defendants do not perform their obligations.
In the
past, the Court concluded monetary fines in the form of
contempt sanctions might convince Defendants to come into
compliance. Defendants did not agree the Court had the power
to pursue contempt fines and Defendants are presently
appealing that issue. But while Defendants continue to argue
contempt fines cannot be imposed, Defendants have never
identified another realistic enforcement mechanism the Court
should invoke. It is foolish to believe the parties meant for
the Court to have no enforcement mechanisms. The stipulation
itself states the Court shall have “the power to
enforce [the] Stipulation through all remedies provided by
law, except that the Court shall not have the authority to
order Defendants to construct a new prison or to hire a
specific number or type of staff.” (Doc. 1185 at
14-15). Thus, if Defendants wish to continue down the path of
attempting to come into compliance with the stipulation, they
will first have to outline the parameters of their view of
“all remedies provided by law.” That is,
Defendants will be required to outline each and every
enforcement mechanism that is authorized by the stipulation
and general principles of law. Plaintiffs will be required to
do the same.
In
considering whether to select this option, the parties should
carefully review Dr. Stern's observations that the
performance measures poorly reflect the adequacy of care
being provided. In other words, Dr. Stern believes that even
if Defendants were complying with all the performance
measures, prisoners would still not be receiving the required
level of care. If compliance with the performance measures
would not, in fact, provide the level of care Defendants are
obligated to provide under the Constitution, Defendants would
be susceptible to massive lawsuits based on the actual
provision of care.
B.
New Settlement
The
second option is for the parties to negotiate a new
settlement, perhaps with the assistance of Magistrate Judge
Fine who is involved in this case and will soon have under
consideration the parties' maximum custody disputes. As
noted earlier, Dr. Stern identified numerous performance
measures that should be eliminated and proposed revisions to
other performance measures. Dr. Stern's recommendations
appear to be a solid basis on which the parties could craft a
supplemental settlement agreement. Such an agreement would
result in a much more focused effort aimed at ensuring the
delivery of required health care. Importantly, a supplemental
agreement could include automatic enforcement mechanisms in
the event of noncompliance.
It is
noteworthy that this option offers the immense benefit of
possibly resolving the entire controversy, including all
matters before this Court and the Ninth
Circuit.[3] Significantly, the window ...