Jensen v. Thornell
Opinion
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Shawn Jensen, et al. No. CV-12-00601-PHX-ROS
10 Plaintiffs, ORDER AND PERMANENT INJUNCTION 11 v.
12 Ryan Thornell, et al.,
13 Defendants. 14 15 On June 30, 2022, the Court issued its Findings of Fact and Conclusion of Law 16 identifying constitutional violations in the provision of health care and in housing certain 17 prisoners in isolation. (Doc. 4335). In that Order, the Court required the parties “nominate 18 proposed experts to assist the Court with crafting an injunction that complies” with the 19 statutory limitations on injunctions addressing prison operations. (Doc. 4335 at 180). The 20 parties subsequently nominated their preferred experts. In their list, Defendants nominated 21 Dr. Marc Stern. (Doc. 4339). Defendants in writing informed the Court “Dr. Stern’s 22 dedication to the design, management, and operation of health services in corrections 23 settings [would] provide this Court and the parties with valuable guidance in crafting an 24 injunction regarding the provision of medical care at ADCRR.” (Doc. 4339 at 4). After 25 reviewing the parties’ lists, the Court solicited additional briefing. (Doc. 4340). In that 26 additional briefing, Plaintiffs made no objection to the appointment of Dr. Stern. 27 On August 4, 2022, the Court held a hearing with the parties and Dr. Stern. (Doc. 28 4351). During that hearing the Court noted Dr. Stern’s past work in this case made him 1 experienced and therefore an “attractive expert” to assist with crafting an injunction.1 2 (Doc. 4358 at 8). Dr. Stern stated he could address medical care aspects of the planned 3 injunction, but he would need additional assistance on the topics of mental health care and 4 conditions imposed on the subclass. Dr. Stern stated he had individuals in mind who may 5 be able to assist him on those topics. 6 After finding Dr. Stern was a qualified expert, the Court discussed with Dr. Stern 7 and the parties the type of communications the Court’s experts could have with the Court 8 and the parties. Both sides agreed the experts could have ex parte communications with 9 Defendants, defense counsel, Plaintiffs’ counsel, and the Court. (Doc. 4358 at 19-20). 10 Accordingly, the Court held the experts could have ex parte conversations as they deemed 11 appropriate. The Court stated it would keep general notes regarding the contents of its 12 communications with the experts. 13 The day after the hearing, the Court formally appointed Dr. Stern and shortly 14 thereafter the Court appointed two additional experts to assist Dr. Stern to which the parties 15 had no objection. (Doc. 4352, 4362). Those three experts then began crafting 16 recommendations for the final injunction. In doing so, the experts had extensive back and 17 forth communications with individuals who had relevant information. Thus, Dr. Stern and 18 Dr. Bart Abplanalp spoke with Plaintiffs’ trial experts, Plaintiffs’ counsel, Defendants’ 19 counsel, Defendants, ADCRR personnel, Centurion personnel, and NaphCare personnel. 20 John McGrath spoke with some of the same individuals, but he also spoke with wardens, 21 deputy wardens, and other custody staff. Mr. McGrath visited some of the facilities to gain 22 a better understanding of possible solutions to the flaws identified by the Court. The 23 experts also explained some of their recommended changes to the Court. Altogether, the 24 Court-appointed experts spent close to 500 hours investigating and identifying appropriate 25 1 That hearing included some discussion of appointing a receiver. The Court stated it was 26 “not prepared to consider, at [that] time, a receivership. That doesn’t mean it’s off the table forever in this case, but not now.” (Doc. 4358 at 4). The decision not to appoint a receiver 27 was based on the Court’s expectation that Defendants appeared willing “to cooperate” and “act in good faith” in monitoring their performance under an injunction. (Doc. 4358 at 7). 28 Any failure to act in good faith or to meaningfully comply with this injunction will revive consideration of appointing a receiver. 1 solutions to the unconstitutional findings outlined in the Court’s Findings of Fact. 2 The back-and-forth between the parties and the Court’s experts included discussions 3 regarding specific recommendations the experts might propose. And the experts 4 incorporated some recommendations made by the parties or their agents that the experts 5 may not have otherwise included. In other words, the experts made extensive efforts to 6 assess the possible solutions to the unconstitutional conditions and they paid close attention 7 to the solutions proposed by Defendants and their agents. Over the approximately four- 8 month period of the experts’ work, the parties or their representatives had ample 9 opportunity to explain to the experts why particular solutions were not feasible or why the 10 experts should recommend some solutions over others. 11 On January 9, 2023, the Court issued a Draft Injunction. The Court instructed the 12 parties to review the Draft Injunction and file any objections. If the parties identified 13 provisions with which they disagreed, the Court also required the parties to confer and see 14 if they could reach agreement on proposed alternatives. The Court noted agreements 15 between the parties would “have substantial weight” when the final terms of the injunction 16 were established. (Doc. 4380 at 2). 17 After issuance of the Draft Injunction, the parties and the experts engaged in 18 extensive communications regarding possible modifications. Pursuant to those 19 discussions, the parties proposed changes to the experts’ staffing models. Instead of a 20 caseload-based staffing model for medical and mental health personnel, the parties 21 proposed a specific number of key personnel that must be hired. Thus, the parties proposed 22 within three months of the date of this Order, Defendants be required to hire all required 23 staff in the current contract with the private health care provider (NaphCare) as well as an 24 additional seven physicians, two psychiatric prescribers, ten psych associates, and three 25 psychologists. The experts agreed these additional targeted staff members would be 26 acceptable for the short term. Therefore, the Court will not require the caseload-based 27 model but will mandate Defendants immediately hire the number of specific personnel. 28 The number of immediate hires may ultimately be insufficient to remedy the 1 unconstitutional substantial risk of serious harm identified in the Court’s decision. 2 Therefore, the Court will require a further staffing analysis be completed within six months 3 of this Order. The results of that analysis may require that the Court order Defendants hire 4 additional staff or staff with different qualifications. 5 The parties also proposed other smaller modifications to the Draft Injunction. The 6 experts agreed adoption of those changes would continue to alleviate the unconstitutional 7 conditions set forth in the Court’s findings. Based on the experts’ opinions, and 8 recognizing the Court should attempt to defer to Defendants’ expertise when possible, the 9 Court will require the parties comply with the additional modifications proposed by the 10 parties. 11 Need for Specifics 12 The Court’s Findings of Fact and Conclusions of Law established Defendants’ basic 13 model for medical and mental healthcare and staffing decisions that flow from that model 14 create an unconstitutional substantial risk of serious harm to Plaintiffs. Therefore, the 15 changes necessary to redress the failings will be substantial. As significant, the insufficient 16 staffing and a wide variety of conditions of confinement combine to create an 17 unconstitutional substantial risk of serious harm to subclass members.
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Shawn Jensen, et al. No. CV-12-00601-PHX-ROS
10 Plaintiffs, ORDER AND PERMANENT INJUNCTION 11 v.
12 Ryan Thornell, et al.,
13 Defendants. 14 15 On June 30, 2022, the Court issued its Findings of Fact and Conclusion of Law 16 identifying constitutional violations in the provision of health care and in housing certain 17 prisoners in isolation. (Doc. 4335). In that Order, the Court required the parties “nominate 18 proposed experts to assist the Court with crafting an injunction that complies” with the 19 statutory limitations on injunctions addressing prison operations. (Doc. 4335 at 180). The 20 parties subsequently nominated their preferred experts. In their list, Defendants nominated 21 Dr. Marc Stern. (Doc. 4339). Defendants in writing informed the Court “Dr. Stern’s 22 dedication to the design, management, and operation of health services in corrections 23 settings [would] provide this Court and the parties with valuable guidance in crafting an 24 injunction regarding the provision of medical care at ADCRR.” (Doc. 4339 at 4). After 25 reviewing the parties’ lists, the Court solicited additional briefing. (Doc. 4340). In that 26 additional briefing, Plaintiffs made no objection to the appointment of Dr. Stern. 27 On August 4, 2022, the Court held a hearing with the parties and Dr. Stern. (Doc. 28 4351). During that hearing the Court noted Dr. Stern’s past work in this case made him 1 experienced and therefore an “attractive expert” to assist with crafting an injunction.1 2 (Doc. 4358 at 8). Dr. Stern stated he could address medical care aspects of the planned 3 injunction, but he would need additional assistance on the topics of mental health care and 4 conditions imposed on the subclass. Dr. Stern stated he had individuals in mind who may 5 be able to assist him on those topics. 6 After finding Dr. Stern was a qualified expert, the Court discussed with Dr. Stern 7 and the parties the type of communications the Court’s experts could have with the Court 8 and the parties. Both sides agreed the experts could have ex parte communications with 9 Defendants, defense counsel, Plaintiffs’ counsel, and the Court. (Doc. 4358 at 19-20). 10 Accordingly, the Court held the experts could have ex parte conversations as they deemed 11 appropriate. The Court stated it would keep general notes regarding the contents of its 12 communications with the experts. 13 The day after the hearing, the Court formally appointed Dr. Stern and shortly 14 thereafter the Court appointed two additional experts to assist Dr. Stern to which the parties 15 had no objection. (Doc. 4352, 4362). Those three experts then began crafting 16 recommendations for the final injunction. In doing so, the experts had extensive back and 17 forth communications with individuals who had relevant information. Thus, Dr. Stern and 18 Dr. Bart Abplanalp spoke with Plaintiffs’ trial experts, Plaintiffs’ counsel, Defendants’ 19 counsel, Defendants, ADCRR personnel, Centurion personnel, and NaphCare personnel. 20 John McGrath spoke with some of the same individuals, but he also spoke with wardens, 21 deputy wardens, and other custody staff. Mr. McGrath visited some of the facilities to gain 22 a better understanding of possible solutions to the flaws identified by the Court. The 23 experts also explained some of their recommended changes to the Court. Altogether, the 24 Court-appointed experts spent close to 500 hours investigating and identifying appropriate 25 1 That hearing included some discussion of appointing a receiver. The Court stated it was 26 “not prepared to consider, at [that] time, a receivership. That doesn’t mean it’s off the table forever in this case, but not now.” (Doc. 4358 at 4). The decision not to appoint a receiver 27 was based on the Court’s expectation that Defendants appeared willing “to cooperate” and “act in good faith” in monitoring their performance under an injunction. (Doc. 4358 at 7). 28 Any failure to act in good faith or to meaningfully comply with this injunction will revive consideration of appointing a receiver. 1 solutions to the unconstitutional findings outlined in the Court’s Findings of Fact. 2 The back-and-forth between the parties and the Court’s experts included discussions 3 regarding specific recommendations the experts might propose. And the experts 4 incorporated some recommendations made by the parties or their agents that the experts 5 may not have otherwise included. In other words, the experts made extensive efforts to 6 assess the possible solutions to the unconstitutional conditions and they paid close attention 7 to the solutions proposed by Defendants and their agents. Over the approximately four- 8 month period of the experts’ work, the parties or their representatives had ample 9 opportunity to explain to the experts why particular solutions were not feasible or why the 10 experts should recommend some solutions over others. 11 On January 9, 2023, the Court issued a Draft Injunction. The Court instructed the 12 parties to review the Draft Injunction and file any objections. If the parties identified 13 provisions with which they disagreed, the Court also required the parties to confer and see 14 if they could reach agreement on proposed alternatives. The Court noted agreements 15 between the parties would “have substantial weight” when the final terms of the injunction 16 were established. (Doc. 4380 at 2). 17 After issuance of the Draft Injunction, the parties and the experts engaged in 18 extensive communications regarding possible modifications. Pursuant to those 19 discussions, the parties proposed changes to the experts’ staffing models. Instead of a 20 caseload-based staffing model for medical and mental health personnel, the parties 21 proposed a specific number of key personnel that must be hired. Thus, the parties proposed 22 within three months of the date of this Order, Defendants be required to hire all required 23 staff in the current contract with the private health care provider (NaphCare) as well as an 24 additional seven physicians, two psychiatric prescribers, ten psych associates, and three 25 psychologists. The experts agreed these additional targeted staff members would be 26 acceptable for the short term. Therefore, the Court will not require the caseload-based 27 model but will mandate Defendants immediately hire the number of specific personnel. 28 The number of immediate hires may ultimately be insufficient to remedy the 1 unconstitutional substantial risk of serious harm identified in the Court’s decision. 2 Therefore, the Court will require a further staffing analysis be completed within six months 3 of this Order. The results of that analysis may require that the Court order Defendants hire 4 additional staff or staff with different qualifications. 5 The parties also proposed other smaller modifications to the Draft Injunction. The 6 experts agreed adoption of those changes would continue to alleviate the unconstitutional 7 conditions set forth in the Court’s findings. Based on the experts’ opinions, and 8 recognizing the Court should attempt to defer to Defendants’ expertise when possible, the 9 Court will require the parties comply with the additional modifications proposed by the 10 parties. 11 Need for Specifics 12 The Court’s Findings of Fact and Conclusions of Law established Defendants’ basic 13 model for medical and mental healthcare and staffing decisions that flow from that model 14 create an unconstitutional substantial risk of serious harm to Plaintiffs. Therefore, the 15 changes necessary to redress the failings will be substantial. As significant, the insufficient 16 staffing and a wide variety of conditions of confinement combine to create an 17 unconstitutional substantial risk of serious harm to subclass members. Again, the changes 18 necessary to alleviate the risk of harm to the subclass will be substantial. Given the 19 substantial dysfunction in Defendants’ operations, the Court will provide significant detail 20 regarding medical care, mental health care, and conditions imposed on the subclass to 21 remedy the egregious constitutional violations.2 22 Moreover, the unusual scope of this injunction is informed by Defendants’ actions 23 throughout this case. Despite their agreement and promise to the Court to do otherwise, 24 2 As expressed multiple times throughout the almost ten years this case has been pending, 25 the Court has no interest in micromanaging Defendants’ operations. At the hearing on August 4, 2022, the Court stated: “I am not -- and I have said this a number of times, I 26 don’t know how many -- but the Court is not in a position, and never should be in a position of running the prison. That’s not my job.” (Doc. 4358 at 16). In addition, Defendants 27 have a constitutional responsibility to care for the prisoners in their custody. Therefore, this injunction is addressed to Defendants, not their private healthcare contractor (presently 28 NaphCare). Defendants must comply with the injunction and any disputes between Defendants and their private healthcare contractor are beyond the scope of this injunction. 1 Defendants have fought every aspect of this case at every turn. Defendants entered into a 2 settlement agreement where they claimed they would improve the care provided to 3 prisoners and improve the conditions of confinement for the subclass. Yet almost 4 immediately Defendants failed to perform those obligations and continued in that failure. 5 Instead of acknowledging their failures, Defendants kept inaccurate records and 6 unreasonably misread the settlement’s requirements to their advantage. During trial, 7 Defendants presented arguments and witnesses that were manifestly unreliable and 8 unpersuasive. And on some aspects, Defendants presented no meaningful defense at all. 9 For example, Defendants did not present any expert testimony that the conditions imposed 10 on the subclass were appropriate. Most importantly, trial established Defendants blatantly 11 had not made any serious effort to remedy the flaws highlighted by this litigation. Given 12 this history, the Court cannot impose an injunction that is even minutely ambiguous 13 because Defendants have proven they will exploit any ambiguity to the maximum extent 14 possible. 15 Despite Defendants’ unsatisfactory past behavior, the Court embraces the rule that 16 the injunction is required to be narrowly drawn, extend no further than necessary to correct 17 Defendants’ ongoing violations of Plaintiffs’ constitutional rights, and be the least intrusive 18 means necessary to correct and prevent violations. 18 U.S.C. § 3626(a)(1)(A). In addition, 19 the injunction must “describe in reasonable detail” what Defendants must do and must be 20 specific and definite to allow for accurate monitoring and, if necessary, enforcement. Fed. 21 R. Civ. P. 65(d)(1)(C); United States v. DAS Corp., 18 F.4th 1032, 1039 (9th Cir. 2021) 22 (“Civil contempt consists of a party’s disobedience to a specific and definite court order by 23 failure to take all reasonable steps within the party's power to comply.”). In light of these 24 requirements, the Court reviewed the experts’ recommendations created in close contact 25 with the parties and the original proposed injunction sought to impose only those 26 requirements necessary to correct the constitutional violations at issue. 27 Quantitative and Qualitative 28 The extended history of this case mandates a need for the Court to impose both 1 quantitative and qualitative measures.3 Defendants’ performance under the quantitative 2 performance measures required by the settlement revealed the quality of the underlying 3 care often was abysmal, even when Defendants reported compliance with quantitative 4 benchmarks. That is, history has established reliance on quantitative performance 5 measures was not adequate or suitable because of the enormous endemic structural 6 problems at ADCRR that were not immediately apparent. Thus, the only plausible solution 7 is to require a significant number of qualitative benchmarks that assess whether the 8 underlying care provided is constitutional. 9 Monitoring 10 Unlike the attempt at monitoring under the parties’ settlement, the Court has 11 appointed its own experts to serve as neutral monitors to evaluate Defendants’ 12 performance. The Court appointed Dr. Marc F. Stern, Dr. Bart Abplanalp, Dr. Lara Strick, 13 and Mr. Scott Frakes to assist the court in monitoring Defendants’ compliance with this 14 Order. Dr. Stern was granted authority to identify additional appropriately qualified and 15 credentialed staff as needed to assist the aforementioned monitors in their work. Dr. Stern 16 subsequently identified, and the Court appointed, two individuals to assist with 17 administrative tasks. 18 To ensure accurate monitoring, Defendants shall provide the monitors and 19 additional staff remote access to the electronic health record (“EHR”) and other electronic 20 records (e.g., EOMS) that are available by remote access and necessary for monitoring. 21 Monitors will generally provide advance notice prior to visits of facilities, however, they 22 may make unannounced visits as needed. Monitors and their staff may bring into facilities 23 cell phones, computers, tablets, and cameras necessary to conduct monitoring activities. 24 The monitors and staff will be responsible for securing such equipment and following rules 25 with regard to the materials. Monitors may record any still or video images within all
26 3 As used here, “quantitative” refers to measuring only the quantity of certain events or actions. “Qualitative,” on the other hand, refers to measuring the appropriateness of the 27 events or actions. The Stipulation’s performance measures were “quantitative” in that they merely reflected a tabulation of acts or events. The performance measure scores did not 28 require a “qualitative” inquiry and did not reflect whether any of the acts or events that occurred were medically appropriate under the circumstances. 1 facilities necessary to document conditions relevant to this Order. Monitors will make 2 every effort to avoid including the face of any individual (staff or prisoner) unless it is 3 necessary for monitoring purposes and the individual agrees. In the event an image 4 includes a face and the image is filed with the Court, the face will either be blurred to distort 5 the image or the document itself sealed. The monitors will submit written reports to the 6 Court as they deem necessary. 7 Despite the appointment of monitors, much of the monitoring will depend on data 8 collected by Defendants and their agents. Therefore, Defendants shall use reasonable 9 judgment in selecting methodologies for monitoring compliance and shall exercise care in 10 the underlying measurements. As part of Arizona’s ongoing decision to outsource prisoner 11 healthcare, Defendants are constitutionally required to monitor the performance of their 12 healthcare vendor. Monitoring of this injunction will use that preexisting monitoring 13 apparatus as much as possible. Defendants will be required to collect monthly data and 14 perform analyses beyond what they are doing now. To do so Defendants are required to 15 employ sufficient staff with appropriate levels of professional credentials and experience 16 to conduct the monitoring described in this Order. For example, physicians will be required 17 to conduct qualitative review of the work of all physicians. Defendants may not delegate 18 such monitoring to the contractor (e.g., NaphCare) providing health care services to 19 prisoners, if there is one. 20 Defendants shall monitor all elements of this order on a monthly basis. Monitoring 21 shall be completed and available for inspection by the monitors by the last day of the month 22 following the monitored month. Defendants shall maintain adequate supporting evidence 23 for their monitoring results. 24 The Court’s monitors may rely on monitoring conducted by ADCRR and any 25 additional information that the monitors obtain. Such additional information may come 26 from a variety of sources including but not limited to: interviews with class members, 27 Defendants’ staff, or contractors; complaints from prisoners or others on their behalf; 28 Plaintiffs’ counsel; random or purposive review of health care records; direct observation; 1 site visits; review of paper or electronic records; and review of video records. 2 In general, where performance can be measured by automated systems, a 100% 3 sample will be required. Unless otherwise noted, where performance must be measured 4 by review of individual cases, reports, health records, events, etc., Defendants will sample 5 at least 50 items statewide, chosen in an accurate and reasonable manner. As used here, 6 “reasonable” means that the minimal sample is drawn from a relevant population at high 7 risk if performance is poor and is drawn from venues roughly in proportion to relevant 8 items at that venue. For example, if half of all maximum custody prisoners are held at 9 Complex A and half at Complex B, minimal samples regarding maximum custody would 10 be drawn in roughly equal numbers from Complexes A and B; samples beyond the 11 minimum, however, may be drawn from anywhere. 12 As an additional way to monitor compliance with this Order, the Court-appointed 13 monitors will create a confidential mechanism for current prisoners, former prisoners, 14 friends and family of prisoners, prison staff, contract staff (included the contracted health 15 care vendor), and the public, to notify the Court of problems or complaints of unsafe and 16 unsound health care conditions or conditions of confinement. As the monitors deem 17 appropriate, the mechanism may receive submissions by postal mail or electronically. 18 Within two months of this Order, Defendants shall design and implement a mechanism for 19 prisoners to submit communications to the Court-appointed monitors. Submissions are 20 solely for the purpose of providing relevant information to the monitors. The monitors will 21 not necessarily investigate a submission or take action on behalf of a prisoner. Monitors 22 may or may not provide a direct response to a submission. Defendants’ implementation 23 shall inform prisoners and staff that this confidential mechanism does not replace any 24 existing system by which prisoners or others are expected to inform Defendants of 25 problems for which they require a resolution, such as the prisoner grievance process or 26 staff reporting mechanisms. 27 This injunction has not set forth the full extent of the data that must be collected, 28 analyzed, and made available to the Court-appointed monitors. Other data may be 1 determined necessary during monitoring. Defendants shall cooperate with the monitors in 2 devising all appropriate methods of data collection and data transmission.4 If unforeseen 3 changes in conditions or operations render any of the requirements in this Order obsolete, 4 unnecessary, or impractical, the monitors will recommend to the Court appropriate 5 alterations to the injunction. The parties may also petition the Court to modify or annul 6 requirements. Defendants will be allowed a reasonable amount of time to implement any 7 modification.5 8 Plaintiffs’ Monitoring 9 While the Court-appointed monitors will be a valuable source of information, 10 Plaintiffs and their counsel will still have primary responsibility for assessing Defendants’ 11 performance and, if Defendants do not perform, it will be Plaintiffs’ duty to seek additional 12 appropriate relief. This will require Plaintiffs’ counsel and their experts to have ongoing 13 access to class members, medical records, and the locations where class members are 14 housed. That access shall include: 15 • Plaintiffs’ counsel will have read-only access to class members’ electronic health 16 records; 17 • Plaintiffs’ counsel will receive monthly data reports already being produced by 18 Defendants and Plaintiffs may demand the gathering of additional data and 19 production of reports, as necessary to enforce all terms of this injunction; 20 • Plaintiffs’ counsel will be able to conduct visits to speak to class members and staff 21 and tour units. Those visits will be no more than 40 days per calendar year; and 22 • Defendants will provide substantive and timely responses in writing to concerns 23 raised by Plaintiffs’ counsel regarding individual treatment or systemic issues.
24 Defendants’ Policies 25 All new policies and procedures or any modifications to existing policies and 26 4 Defendants and their agents shall not take any retaliatory actions against anyone who 27 gathers or produces information relevant to Defendants’ performance under this injunction. Doing so will be a contempt of Court. 28 5 These will be implemented in accordance with the limitations set forth in 18 U.S.C. § 3626(b)(1). 1 || procedures that are implemented to comply with the requirements of this Injunction shall || be provided to Plaintiffs’ counsel and the monitors at least 30 days before the new or 3|| modified policy becomes effective. These policies and procedures may be implemented 4|| immediately on an interim basis if the Director certifies that there are exigent 5 || circumstances. Any objections to these policies and procedures shall be subject to 6 || negotiations between the parties. If negotiations fail, Defendants shall seek Court approval of the new or modified policies.® 8 Accordingly, 9 IT IS ORDERED all parties shall comply with the terms of the permanent 10 || injunction that follows. 11 IT IS FURTHER ORDERED the Clerk of Court shall enter judgment in favor of Plaintiffs. 3 Dated this 7th day of April, 2023. — Nu 15 □□ yi Cy Honorable Roslyn ©. Silver 16 Senior United States District Judge 17 18 19 20 21 22 23 24 25 26 — ° It has long been settled the Court will automatically retain jurisdiction to monitor and 27|| enforce the terms of the Permanent Injunction. United. States v. Nite & Co., 286 U.S. 106, 28 114 (1932) (noting power to enforce injunction is “inherent in the [Court’s] jurisdiction”). To avoid any ambiguity, the Court expressly retains jurisdiction to monitor and enforce the terms of the Permanent Injunction. -10-
1 Permanent Injunction 2 Medical and Mental Health Overall Requirements 3 1. General Requirements 4 1.1. All health (physical and mental health) care (including but not limited to: emergent; 5 urgent; non-urgent episodic; chronic; palliative; scheduled; inpatient; residential; 6 outpatient; referrals to other on-site professionals; off-site specialty referrals; 7 modifications of specialty referral requests; action taken on post-hospital, post- 8 emergency room, or specialist recommendations), and the documentation 9 supporting that care, delivered to Plaintiffs during a medical encounter (primarily 10 face-to-face encounters), in response to an inquiry from a nurse or patient, during 11 a chart review or chart-based triage decision, or upon receipt of results from a test, 12 a report from a consultant, or other external health record, shall be clinically 13 appropriate, including, where relevant to the circumstance and professional’s 14 credential, but not limited to, the conducting of the history and physical 15 examination, forming and testing a differential diagnosis, arriving at a diagnosis, 16 and ordering treatment for that diagnosis. 17 1.2. Defendants shall document all aspects of care to allow for monitoring of these 18 requirements. 19 1.3. All prisoners with physical or mental illness that require regular follow-up shall be 20 designated on the medical or mental health caseload and shall be seen in clinically 21 appropriate timeframes. 22 1.4. Telehealth medicine may be used only when clinically appropriate. 23 1.5. Emergency response and care provided by custody staff shall be appropriate given 24 the skill level and knowledge expected of custody staff. 25 1.6. Defendants shall provide sufficient space, equipment, and supplies for health care 26 staff to deliver the health care services described in this Order, regardless of 27 housing assignment, including housing assignments with restricted liberty. 28 1 1.7. The space provided for clinical encounters shall be sufficient to allow for auditory 2 and visual confidentiality from other prisoners or non-clinical staff. Visual 3 confidentiality requirements apply at those times when an examination reveals 4 portions of the prisoner’s body or the prisoner is touched in ways that would not be 5 visualized or touched, respectively, in the typical prison environment. Exceptions 6 may be made for encounters where providing such confidentiality would 7 legitimately jeopardize safety, including emergency situations. In those cases, 8 breaches of confidentiality are limited to the measures required to ensure safety, 9 and all staff shall maintain the confidentiality of any information they acquire as a 10 result of the breach. 11 1.8. Emergency response equipment (“Man Down Bag,” Automated External 12 Defibrillators (“AEDs”), oxygen) shall contain all items required by policy, all 13 equipment shall be in working order, and all medications shall be unexpired. 14 Naloxone is required to be kept on every living unit or with every AED. Emergency 15 Response bag checklists shall reflect the equipment was checked daily and 16 inventoried monthly. The checklists shall also reflect medications are within their 17 expiration date and equipment is operational. Staff shall complete and document 18 all AED manufacturer recommended checks (e.g., daily, monthly, annual). 19 1.9. Directors of Nursing may not spend more than 15% of their time providing 20 scheduled or unscheduled prisoner care. 21 1.10. All staff hired in clinical supervising positions must have at least two years 22 clinical experience. 23 1.11. Licensed Practical Nurse (“LPNs”) shall practice within their scope of practice 24 set forth in Arizona Administrative Code § 4-19-401. LPNs and Behavioral Health 25 Technicians shall not independently assess prisoners or initiate a plan of care or 26 treatment. 27 28 1 1.12. No one hired for whom a health professions license is required may possess a 2 restricted license if the restriction is related to clinical competency or is restricted 3 to practice in a correctional facility. 4 1.13. Health care staff responsible for direct prisoner care shall not be mandated to work 5 beyond the following limits: more than 12 hours in any 24-hour period; less than 8 6 hours off between any two shifts; more than 60 hours in a calendar week defined 7 as Sunday through Saturday. 8 1.14. The limits on overtime may be extended during emergency situations in which a 9 prisoner’s safety is in jeopardy and no reasonable alternative can be found or during 10 a declared emergency (e.g., prison riot, natural disaster). Time spent on-call is not 11 included in the time limits. For purposes of the overtime limits, “emergency 12 situations” are defined as unforeseen events that could not be prudently planned for 13 and do not regularly occur. Failure to hire or retain adequate staffing is not an 14 emergency situation. 15 1.15. Within three months of this Order, Defendants shall ensure there is a sufficient 16 number of custody staff to support the functioning of the health care operation, 17 including but not limited to: transporting prisoners to on-site and off-site clinical 18 encounters and appointments; administration of medications; and providing 19 security in the venues of health care operations. Exceptions may be made for a 20 declared emergency (e.g., prison riot, natural disaster). Chronic understaffing does 21 not qualify as a declared emergency. 22 1.16. No later than three months after issuance of this Order, Defendants shall fill all 23 positions required by the current contract with the health care vendor including any 24 modifications, addenda, or updates and the additional positions defined in sections 25 6.1 and 12.1. A filled position is one in which there is an incumbent receiving a 26 salary for the full intended time commitment of the position and is not on long term 27 leave, e.g., Family Medical Leave Act. An individual may not fill more than 1.0 28 1 full-time equivalent (“FTE”). Defendants may use registry staff to fill up to 15% of 2 these FTE in each job category. 3 1.17. To determine the number of staff necessary to care for patients, the Court will 4 appoint an expert to conduct a staffing analysis and plan of health care positions at 5 each location. The parties shall attempt to reach agreement on the expert, but if no 6 agreement is reached, the parties shall submit the names and qualifications of 7 proposed experts within 14 days of this Order. The Court will appoint an expert 8 from the lists provided by the parties, unless the Court finds the proposed expert 9 unqualified. The appointed expert may appoint additional appropriately qualified 10 and credentialed staff to assist the expert. The expert’s services shall be paid by 11 Defendants. The staffing analysis and plan shall be filed with the Court within six 12 months from the date of this Order. The plan shall contain recommendations that 13 shall be reviewed by the Court and, if approved, ordered by the Court. Any 14 objections to the staffing plan and recommendations shall be filed by the parties 15 within ten days and a response to the objections shall be filed within ten days 16 thereafter. 17 1.18. Defendants shall hire additional staff, above the minima described in this section, 18 as necessary, to provide constitutionally adequate health care. 19 1.19. A staff position may be filled by persons employed by ADCRR, its health care 20 vendor, or under temporary contract. 21 1.20. Urgent Care 22 1.20.1. When a prisoner notifies a correctional officer that he or she has a need for 23 health care (medical or mental health) the officer may not inquire as to the 24 nature of the need or symptoms. The officer’s inquiry is limited to asking 25 whether the need is immediate or if the prisoner can wait to sign up for the next 26 scheduled clinic, or if the prisoner is thinking of harming him/herself. If the 27 prisoner is thinking of harming him/herself, the officer shall immediately 28 ensure the prisoner’s safety and contact health care staff in accordance with 1 Section 15.8.1. For other needs that are immediate, the officer shall contact 2 health care staff immediately. A Registered Nurse (“RN”) shall triage the 3 prisoner immediately, either by seeing the prisoner, or talking to the prisoner 4 directly over the phone. Based on the triage results, the RN shall discuss the 5 prisoner with a medical practitioner (i.e., physician, nurse practitioner, or 6 physician assistant) or mental health professional in a clinically appropriate 7 timeframe, not to exceed four hours. In this context, the mental health 8 professional shall be a psych associate, psychologist, or psychiatric prescriber. 9 Based on that interaction the professional who was contacted shall: 10 1.20.1.1. see and treat the prisoner the same day; or 11 1.20.1.2. instruct the RN on treatment to provide, and, if necessary, schedule the 12 prisoner for further evaluation or treatment in a clinically appropriate 13 timeframe; or 14 1.20.1.3. determine the health care need is not urgent and that a reasonable 15 prisoner would not have considered the health care need to be urgent, defer 16 treatment, and instruct the prisoner to access non-urgent/non-emergent 17 care for treatment. 18 1.20.2. Nothing in the model of urgent care is meant to limit a correctional officer 19 from making self-initiated inquiries to a prisoner when the officer has a concern 20 about the prisoner’s condition or safety. 21 1.21. A prisoner may refuse any on-site or off-site provider-initiated health visit and 22 cancel any prisoner-initiated visit. All cancellations of prisoner-initiated visits shall 23 be made directly to a health care professional by telephone, video, or face-to-face. 24 All refusals of provider-initiated on-site health visits are made by telephone, video, 25 or face-to-face with an RN or practitioner for medical visits or a masters level 26 therapist, psychologist, or psychiatric practitioner (psychiatrist, psychiatric nurse 27 practitioner, psychiatric physician assistant) for mental health visits, within three 28 days after the appointment. All refusals of off-site health visits are made by 1 telephone, video, or face-to-face with an RN or higher at the time of the 2 appointment. If a prisoner will not voluntarily displace him/herself to participate 3 in the direct communication with health care staff required here, health care staff 4 shall go to the prisoner’s location. 5 1.22. Orders from health care (medical and mental health) staff in the outpatient and 6 inpatient arenas shall be completed within the timeframe ordered. This includes, 7 but is not limited to, diagnostic tests, follow-up visits with nurses or practitioners, 8 requests for outside records, and treatments. 9 1.23. Prisoners shall be informed in a timely manner of diagnostic test results and of 10 any request staff make for additional consultation (e.g., off-site specialists). 11 1.24. When prisoners on suicide watch, or in a crisis stabilization bed for suicidal 12 concerns, are removed from a cell for a healthcare-related visit, including mental 13 health encounters conducted in or near the living unit, they shall not be restrained 14 or strip-searched unless the Warden or designee has determined and documented 15 the temporary need for such measures due to exigent circumstances. 16 1.25. Defendants shall take all reasonable steps to fill all staffing vacancies. Presently, 17 the Court will not mandate an increase in compensation to fill vacancies. However, 18 the Court will do so in the future should chronic understaffing continue. 19 2. Improvement Programs 20 2.1. Mortality or suicide attempt review 21 2.1.1. Following a prisoner death or suicide attempt, Defendants shall identify all 22 significant health care and custody errors (i.e., near misses as well as 23 preventable adverse events). Based on prioritization of all errors identified, a 24 root cause analysis shall be conducted if clinically appropriate, from which an 25 effective and sustainable remedial plan shall be crafted. A sustainable plan is 26 one which outlives staff memory from a single training after the review or staff 27 turnover. Defendants shall monitor the remedial plan for effectiveness and 28 make appropriate and timely modifications to the plan based on the monitoring. 1 2.1.2. The sustainable plan shall be implemented within one month of the death or 2 suicide attempt. 3 2.1.3. For each death, the plan in this section shall be crafted and implemented 4 whether or not the medical examiner’s report is available. If the medical 5 examiner’s report was unavailable, the plan shall be revisited and modified, if 6 necessary, within one month of receipt of the report. 7 2.2. Near-miss reporting 8 2.2.1. Defendants shall implement an appropriate near-miss error reporting policy. 9 Defendants are encouraged, but not required, to incorporate the following 10 elements in this policy: 11 • Only errors which caused no (or minimal) harm to a prisoner may be 12 reported through this system. 13 • Reporting is voluntary. 14 • Anyone can report (including prisoners). 15 • The reporter is immune from discipline, punishment, or retaliation 16 related to the error unless the following are all true: the reporter is a 17 staff member, the error is one they made themselves, and the error is 18 one for which they have a current disciplinary or other performance 19 improvement plan that addresses such errors. 20 • Reporting is easy and fast for staff with a minimal amount of 21 information required of the reporter initially, so that the reporting 22 process itself is not a barrier to reporting. 23 • Because minimal information is required initially, reports are 24 confidential but not anonymous, so that the reporter can be contacted 25 to obtain more and complete detail later if needed. 26 • Reporters receive feedback about reports and their impact. While 27 individual feedback might be optimal, even feedback to the whole 28 1 workforce about specific prisoner safety changes that resulted from 2 reporting can be valuable. 3 2.3. Preventable adverse event reporting 4 2.3.1. Defendants shall implement a preventable adverse event reporting policy that 5 includes the following elements: 6 2.3.1.1. The policy requires reporting of errors which cause more than minimal 7 harm to a prisoner. 8 2.3.1.2. All such errors shall be reported, not just medication-related errors. 9 2.3.1.3. Reporting is mandatory for all staff. 10 2.4. Continuous Quality Improvement program 11 2.4.1. Defendants shall implement a robust continuous quality improvement 12 program to monitor the quality of clinical care. As part of this program, 13 Defendants shall monitor the absolute number and trend of various parameters 14 on a monthly basis. Where metrics or trends in metrics show room for 15 improvement, Defendants shall make appropriate efforts to understand the 16 underlying reason for deviation, take reasonable steps to effectuate 17 improvement, evaluate the effectiveness of these steps in a reasonable time, 18 and make adjustments to its improvement efforts as needed. At a minimum, 19 Defendants shall monitor: 20 • percentage of individuals (regardless of whether diagnosed with 21 hypertension) whose systolic blood pressure exceeds 140 mmHg 22 or diastolic blood pressure exceeds 90 mmHg; 23 • average hemoglobin A1C (regardless of whether diagnosed with 24 diabetes); 25 • percentage of individuals taking ten or more prescribed 26 medications; 27 • percentage of women receiving timely breast screening; 28 • percentage of women receiving timely cervical cancer screening; 1 • percentage of pregnant women who have the results of routine 2 prenatal laboratory tests results as recommended in current national 3 guidelines (e.g., Guidelines for Prenatal Care, 8th Edition, 4 American Academy of Pediatrics and American College of 5 Obstetricians and Gynecologist, Table 6-2) documented within one 6 month of diagnosis of pregnancy; 7 • percentage of health care grievances which are appealed; 8 • percentage of health care grievance appeal replies that are 9 appropriate; 10 • percentage of prisoners on antipsychotic medications receiving 11 timely AIMS (abnormal involuntary movement scale) assessments; 12 • percentage of prisoners on antipsychotic medications receiving 13 appropriate and timely metabolic assessments; 14 • percentage of prisoners receiving punishment for a rule violation, 15 for whom a mental health intervention would have been more 16 clinically appropriate than punishment; and 17 • percentage of prisoners arriving at ADCRR for whom intake 18 screening by an RN (or higher credentialed professional) is 19 completed more than four hours after arrival. 20 2.4.2. ADCRR shall monitor other parameters as reasonably dictated by the other 21 self-improvement activities described in this Order. 22 2.5. Overall System Improvement 23 2.5.1. Defendants shall evaluate errors, system problems, and possible system 24 problems that come to their attention through sources, including but not limited 25 to the near-miss and preventable adverse event reporting systems, mortality 26 reviews, litigation filed by prisoners, grievances, the Court-appointed 27 monitors, staff reports, continuous quality improvement, etc. Defendants shall 28 address these errors and problems at a complex or statewide level, as 1 appropriate. To prioritize analysis and remediation of errors and other system 2 problems, Defendants shall maintain an active log of all such errors and 3 problems to assist in deciding which issues to address and when, and to monitor 4 progress in resolution. Based on this prioritization, either at the complex or 5 state level, root cause analysis shall be conducted as appropriate, from which 6 an effective and sustainable remedial plan is implemented in a timely manner. 7 Such plan is one which outlives staff memory from a single training after the 8 review or staff turnover. The remedial plan shall be monitored for 9 effectiveness. Appropriate and timely modifications shall be made to the plan 10 based on the monitoring. 11 3. Language Interpretation Services 12 Within three months of issuance of this Order Defendants shall implement the 13 following to ensure adequate interpretation services are available for every material 14 encounter where needed. 15 3.1. Defendants shall develop and implement policies to assess the English fluency of 16 prisoners and, if not English-fluent, determine a language in which the prisoner is 17 fluent at the following times: 18 3.1.1. during intake; 19 3.1.2. upon request by a prisoner at any time; 20 3.1.3. whenever staff have reason to believe a prisoner is not fluent in English; 21 3.1.4. whenever a prisoner’s primary language of communication is not documented 22 in the medical record. 23 3.2. A prisoner’s language of choice shall be visible on all relevant screens of the 24 prisoner’s electronic health record. 25 3.3. For all individual and group health care encounters in all settings involving 26 prisoners who are not fluent in English, interpretation shall be provided via: 27 28 1 3.3.1. health care staff whose name appears on a list maintained by Defendants of 2 people who, pursuant to written policies Defendants develop, is proficient in 3 the language understood by the prisoner; or 4 3.3.2. in-person or via video interpretation service (for sign language) or audio 5 language interpretation service that is compliant with federal law and uses 6 licensed interpreters, where required by state law; or 7 3.3.3. in an emergency and if the above is not feasible, by other available means, 8 e.g., health care staff whose name is not on the above-cited list, non-health care 9 staff, or other prisoners. 10 3.4. The method of interpretation for all encounters (or, in the event interpretation 11 consistent with this Order could not be provided) shall be documented in the 12 electronic health record. 13 3.5. The equipment used for interpretation shall allow for confidential communication 14 in all circumstances (e.g., dual hand- or head-set device in locations where a 15 speaker phone or computer can be seen or overheard by other prisoners or custody 16 staff). 17 3.6. Written available notification (such as a poster) shall be hung in all housing units 18 and medical clinics in all prisons advising prisoners, in the ten most common 19 languages in Arizona, of the availability of interpretation services and that they may 20 inform healthcare staff orally in any language, in sign language, or in writing in any 21 language that they are not fluent in English, if that is not already documented in 22 their electronic health record. 23 4. Electronic Health Records (“EHR”) 24 4.1. An EHR shall be used for prisoner medical and mental health care. Defendants’ 25 chosen healthcare vendor, NaphCare, currently uses TechCare. If Defendants 26 discontinue use of TechCare, Defendants shall transition, without gap, to another 27 EHR. 28 1 4.2. In selecting an EHR, Defendants shall conduct a comprehensive needs assessment 2 by seeking sufficient input from leaders, managers, and front-line users regarding 3 essential functionality, and select an EHR that maximizes fulfillment of essential 4 functions. The EHR shall include a computerized prescription order entry, 5 electronic medication administration record, and electronic prisoner identification 6 system (e.g., ID card bar scan, biometric scan). The EHR shall include, at a 7 minimum, all functionality of TechCare unless Defendants can justify why any 8 non-included functionality is non-essential. Upon transition to another EHR, all 9 existing data shall be transferred from the existing EHR to the next EHR retaining 10 the same titles, metadata, and usability in the next EHR as it had in the existing 11 EHR. 12 4.3. The problem list in a prisoner’s health record shall be accurate, complete, and 13 easily usable. “Easily usable” includes, but is not limited to the following qualities: 14 4.3.1. Resolved or historical conditions or diagnoses are separated from current 15 conditions. 16 4.3.2. The date of onset or resolution of resolved or historical conditions or 17 diagnoses is indicated, if known. 18 4.3.3. Similar or identical diagnoses of current conditions are listed only once. For 19 example, a problem list would not simultaneously list “heart disease,” “heart 20 failure,” and “congestive heart failure, not otherwise specified.” 21 4.4. Imported or scanned documents (including but not limited to diagnostic test results, 22 consultation reports, hospital discharge summaries) in the EHR shall be filed in a 23 clear and usable manner, including, but not limited to: 24 4.4.1. Paper documents are scanned within two business days of receipt. 25 4.4.2. Documents are reviewed by a physician, physician assistant, or nurse 26 practitioner within four business days of receipt. 27 4.4.3. Documents are scanned right-side up. 28 1 4.4.4. Documents are accurately labeled with meaningful titles/file names. Fewer 2 than 1% of files are labeled/titled with names beginning with “Miscellaneous” 3 or “Other.” 4 4.4.5. Scanned documents are dated (and appear in any programmed or ad hoc list 5 according to this date) based on the clinically relevant date of the document, 6 not the date scanned. For example, the clinically relevant date of a: lab test is 7 the date the test was reported by the lab; discharge summary is the date of 8 discharge; a prior health record is the date it was received at ADCRR; an 9 imaging study is the date of study. 10 4.5. Defendants shall provide prisoners access to their own medical records as follows, 11 unless a practitioner documents in the prisoner’s EHR how disclosure of such 12 information would jeopardize the health, safety, security, custody or rehabilitation 13 of the prisoner or others or the safety of any officer, employee or other person at 14 the correctional institution or of a person who is responsible for transporting the 15 prisoner: 16 4.5.1. Granting read-only access to prisoners wishing to read a copy of their health 17 record; 18 4.5.2. Orally share with a prisoner information regarding their diagnosis or any 19 other information about their health care. 20 4.5.3. Defendants may charge a reasonable per-page fee to non-indigent prisoners 21 for paper copies, but no fee may be charged to indigent prisoners. A reasonable 22 fee is one that has the same or lower ratio to the prevailing prisoner wage as 23 the ratio of the prevailing fee in the Arizona medical community to the 24 prevailing Arizona community wage. Alternatively, if the prisoner agrees, 25 Defendants may provide the requested records, free of charge, in an electronic 26 medium that the prisoner is able to access. 27 5. Release Planning 28 1 5.1. For prisoners with identified treatment providers in the community, if the prisoner 2 consents, Defendants shall send each provider relevant health care information 3 prior to the prisoner’s release. This includes, at a minimum, a problem list, list of 4 active medications, current symptoms, functional impairments, a summary of 5 relevant care provided during incarceration, any necessary care or follow-up care, 6 one or more points of contact if a community provider requires further information, 7 and, in addition, for mentally ill prisoners, name and contact information of the 8 primary therapist, an aftercare plan that reflects progress in treatment, and a current 9 treatment plan. The prisoner’s health record shall contain documentation of the 10 above information that was provided, when, and to whom. 11 Medical 12 6. Staffing 13 6.1. Within three months of this Order, Defendants shall hire an additional seven 14 physicians to be allocated at the six corridor facilities based on patient need. 15 Defendants may utilize locum tenens to hire these positions, but will be required to 16 have no more than 15% locum tenens for this job category after six months of the 17 signing of the order. “Physician” refers either to an M.D. or D.O. “APP” refers to 18 advanced practice practitioners with titles of nurse practitioner or physician 19 assistant. 20 6.2. Facility Medical Directors (“FMD”) in low intensity facilities shall be assigned as 21 the primary care provider for patients who need physician level care. Only APPs 22 will be assigned patients who do not require a physician as their primary care 23 provider. FMDs in high intensity facilities shall be assigned up to 100 patients as 24 the primary care provider and shall have no other scheduled patient care 25 assignments including supervision of APPs or as the scheduled provider for 26 specialized units such as Inpatient Component (“IPC”) or Special Needs Unit 27 (“SNU”). This does not limit FMDs from occasional unscheduled clinical 28 supervision and care activities. A “low intensity” complex is one where the average 1 number of prescription medications, measured by the same method used by 2 Defendants and shared with the Court-appointed monitors in November 2022, is no 3 more than 1.75 active prescribed medications on average per complex prisoner. 4 All other complexes are “high intensity.” At present, the low intensity complexes 5 are Douglas, Winslow, and Safford. That may change, however, based on 6 population and prescription changes at each complex. 7 6.3. Prisoners are assigned to the APP caseload in a clinically appropriate manner, i.e., 8 prisoners with multiple or complex medical conditions are only assigned to 9 physician caseloads. 10 6.4. All medical physicians–at hiring and during employment–shall be board certified 11 in Internal Medicine or Family Practice, or board eligible if within 7 years of their 12 completion of an ACGME approved residency in one of these 2 specialties, with 13 the following exceptions: 14 6.4.1. medical directors, shall be board certified at hiring and during employment; 15 6.4.2. physicians providing obstetric and gynecologic services shall be board 16 certified or board eligible if within seven years of their completion of an 17 ACGME approved residency in obstetrics and gynecology; and 18 6.4.3. physicians who are currently employed and are not board eligible may remain 19 employed for no longer than one year after issuance of this Order. 20 7. Model of Care 21 7.1. A registered nurse (“RN”) or higher credentialed professional shall conduct an 22 intake screening within four hours of a prisoner’s arrival or, alternatively, a rapid 23 screening shall be conducted immediately upon arrival, but the intake screening by 24 an RN shall be conducted as soon as possible and before the prisoner proceeds to 25 housing. If the rapid screening is conducted by a professional of lesser credential 26 than an RN (e.g., LPN, certified medical or nursing assistant), then the screening 27 shall not include a clinical assessment, and any abnormal response found by the 28 1 LPN or similar staff shall result in immediate consultation with an RN (or higher 2 credentialed professional). 3 7.2. A medical practitioner shall complete a history and physical examination of each 4 prisoner by the end of the second full day after a new prisoner arrives in 5 Defendants’ custody. 6 7.3. All prisoners shall be assigned a medical primary care practitioner. Assignment to 7 physician or mid-level practitioner shall be based on the complexity of the 8 prisoner’s health conditions. 9 7.4. Non-Urgent/Non-Emergent Care 10 7.4.1. Prisoners shall be given on a daily basis an opportunity to indicate their need 11 to be seen for a medical clinic appointment at the next available clinic by one 12 of the following mechanisms, depending on their living situation, freedom of 13 movement, and access to electronics: 14 • affixing their name to a time slot on a paper list maintained on the 15 living unit or in the medical unit; 16 • affixing their name to a time slot on an electronic list via tablet or 17 kiosk; 18 • informing the nurse who conducts daily (or more frequent) welfare 19 checks on that unit; 20 • an effective paper-based system developed by Defendants in the 21 event of temporary non-functioning of the electronic system. 22 7.4.2. Prisoners should only use this system if they have a non-urgent need. 23 Prisoners with urgent or emergent needs should notify a staff member. A 24 reminder of these rules shall be communicated via the medium the prisoners 25 use to make requests (e.g., a statement placed on the paper or electronic sign- 26 up list). 27 7.4.3. Defendants shall retain for the monitors to access all lists, paper or electronic, 28 for their review. 1 7.4.4. To allow for effective monitoring of healthcare staffing levels, any 2 appointment made that does not occur shall not be erased but shall be notated 3 as not completed. 4 7.4.5. Defendants may continue to allow prisoners to submit Health Needs Requests 5 (“HNR”) for administrative requests that do not require a clinical encounter or 6 clinical judgment, such as, but not limited to: a medication refill request; 7 inquiring about the date of an appointment; a request for health records, etc. 8 7.4.6. All non-urgent/non-emergent care at the request of a prisoner shall be 9 completed in a reasonable time. In addition to other qualitative indicators, 10 “reasonable time” means that on average, there shall be at least three unused 11 appointment slots per week on each medical practitioner’s schedule who is 12 expected to carry a full prisoner caseload for their job category; one unused 13 appointment slot if the practitioner is scheduled for one day or less of prisoner 14 visits; and two unused appointment slots if the practitioner is scheduled for 15 more than one day but less than a full prisoner caseload. 16 7.4.7. Except as noted in this paragraph, initial care shall be provided by a medical 17 practitioner, or another health professional as directed by a physician or APP, 18 as clinically appropriate. The initial care provider shall be the prisoner’s 19 primary care medical provider unless that provider is not on the premises nor 20 conducting telehealth visits at the time. Pursuant to prisoner-specific direction 21 provided by the medical practitioner, RN may provide initial care for a limited 22 number of conditions that are simple, rarely serious, rarely confused with 23 serious conditions, and appropriately treatable with self-care and/or over-the- 24 counter medications provided that the RN operates under clinically appropriate 25 protocols approved by the monitors. This paragraph does not have any impact 26 on the protocols LPNs or RNs use in the first few minutes of an emergency 27 while waiting for contact with a practitioner or arrival of emergency services. 28 1 Defendants shall track and report the number of initial care visits completed by 2 RNs. 3 7.4.8. Within six months of the issuance of this Order, Defendants may seek the 4 Court’s permission to introduce nursing triage. “Triage” refers to the practice 5 of assessing priority amongst those to be seen by a provider that day. 6 7.5. Special Needs Unit (“SNU”) 7 7.5.1. By February 1, 2024, Defendants shall build (or modify existing) living units 8 to accommodate no less than 200 prisoners needing SNU housing, build the 9 units with per-prisoner floor space consistent with AHCCCS requirements for 10 similar populations, equip and staff the units to meet the assisted living needs 11 of the SNU prisoners at the appropriate custody levels, and transfer no less than 12 200 SNU prisoners to those beds. 13 7.5.2. By August 1, 2024, Defendants will build (or modify existing) living units to 14 accommodate all remaining prisoners requiring SNU housing, build the units 15 with per-prisoner floor space consistent with AHCCCS requirements for 16 similar populations, equip and staff the units to meet the assisted living needs 17 of the SNU prisoners at the appropriate custody levels, and transfer all these 18 prisoners to those beds. 19 7.5.3. Prisoners needing SNU housing are prisoners who are elderly, physically 20 disabled, or developmentally disabled, exclusive of those who have acute 21 health care needs requiring placement in an inpatient component and exclusive 22 of those whose assisted living needs are minimal enough to be met by the 23 support normally provided to prisoners in general population, such as 24 assistance with self-administration of medicines. To determine which prisoners 25 need SNU housing, Defendants will be generally guided by the 26 health/functional/physical needs criteria established by the Arizona Health 27 Care Cost Containment System (“AHCCCS”) for individuals to receive 28 1 Elderly and Physically Disabled services as defined in Arizona Administrative 2 Code R9-28-304, e.g., the Pre-Admission Screening Tool. 3 7.6. Inpatient Component (“IPC”) Care 4 7.6.1. A medical practitioner shall be contacted and collaborate on the creation of 5 an immediate care plan immediately upon a prisoner being admitted to the IPC. 6 7.6.2. An RN shall complete an admission nursing assessment immediately upon a 7 prisoner being admitted to an IPC. 8 7.6.3. A medical practitioner shall complete an admission history and physical 9 within one calendar day of admission to the IPC for prisoners who are going to 10 remain beyond 24 hours. 11 7.6.4. An RN shall complete an assessment in the IPC at the frequency ordered. The 12 spacing of the assessments shall be clinically appropriate. 13 7.6.5. The call buttons of all prisoners admitted to an IPC level bed are determined 14 to be working on the day of admission and once per month. If a call button is 15 not working health care staff shall perform a welfare check at least once per 30 16 minutes. 17 7.7. Observation Beds 18 Defendants shall discontinue the use of Observation Beds. Prisoners requiring 19 monitoring or medical care beyond that normally available and safely used in non-medical 20 living units shall be admitted to an IPC. 21 8. Referrals 22 As used in this section, “specialty referral” or “referral” includes any request for a 23 consultation, intervention, test, provision of materials, or other service, that is performed 24 or fulfilled by someone other than employees of ADCRR or than persons filling FTE 25 positions described in the contract and amendments with Defendants’ health care vendor. 26 Defendants shall comply with the following regarding specialty referrals: 27 28 1 8.1. All specialty referrals shall be completed within the ordered timeframe, 2 notwithstanding any time required for processing, reviewing, or consideration of 3 alternative treatment plans. 4 8.2. Unavailability of referral services shall not be a certain, acceptable defense for non- 5 performance, however it may be considered when evaluating Defendants’ 6 performance. In other words, unavailability of referral services, such as not being 7 able to find a specialist willing to see the prisoner, the specialist not having an open 8 slot, or the specialist canceling the appointment, are situations over which 9 Defendants might have had some control. Therefore, the onus remains on 10 Defendants to complete the referral in the time period contemplated by the 11 practitioner. In situations where Defendants prove they exhausted all reasonable 12 measures, non-performance will be excused. 13 8.3. The referral order shall be completed when the referral or modified plan is 14 completed or the referral is canceled. The referral shall be completed in the 15 timeframe established in the practitioner’s order. If the timeframe is extended by 16 the practitioner, the referral completion is timely as long as it is completed within 17 the extended timeframe and the extension was ordered before the original 18 timeframe expired. 19 8.4. If Defendants or their healthcare vendor utilize categorical referral timeframes, 20 e.g., “emergency,” “urgent,” “routine,” for which it applies default timeframes for 21 completion of the referral, Defendants shall notify the Court of those categories and 22 timeframes and shall notify the Court within fourteen days if any of those categories 23 or default timeframes change. 24 8.5. If a practitioner orders a referral to be completed in a specific timeframe (including 25 any free text notation), that order supersedes any categorical classification of the 26 referral. For example, if a practitioner orders a referral to be completed in ten days, 27 and the referral request is classified as “routine” which normally indicates a longer 28 period, the referral still shall be completed in ten days. 1 8.6. The ordering practitioner’s order is the controlling order and is not merely a request 2 for authorization. While suggestions or recommendations may be made by others, 3 e.g., utilization management personnel, to modify the order, the order is only 4 modifiable by the ordering practitioner, their direct clinical supervisor, or, in the 5 ordering practitioner’s absence, another practitioner covering for them. The 6 practitioner writing, modifying, or cancelling the order has a patient-practitioner 7 relationship with the prisoner and assumes clinical responsibility for the decision. 8 8.7. If a practitioner orders, or informs a prisoner there will be an order, for an off-site 9 test or referral, but circumstances change and the order is modified or rescinded, 10 the prisoner shall be informed within one month of the change. 11 9. Post-Referral Appointment, Post-Hospital Stay, Post-Emergency Room 12 Management 13 9.1. Defendants shall adopt and perform off-site orders from outside providers as soon 14 as the records are available, unless a clinically appropriate basis exists to alter or 15 forgo the off-site orders. 16 9.2. Prisoners returning from a hospital stay or emergency room visit shall be evaluated 17 by an RN or higher prior to returning to their living unit. A discharge summary, 18 physician report, or documentation of this information received via phone shall be 19 available for this evaluation. 20 10. Medications 21 10.1. Prescribed medications intended for directly observed therapy (“DOT”) 22 administration shall be administered as ordered or there shall be documentation of 23 a valid reason for non-administration. Documentation shall include the identity of 24 the administrator. 25 10.2. For purposes of the preceding requirement, “as ordered” means: 26 10.2.1. For medications ordered as weekly, every other day or certain days of the 27 week, daily (“q.d.”), twice daily (“b.i.d.”), thrice daily (“t.i.d.”), four times 28 daily (“q.i.d.”), or every 12 hours (q. 12 hrs”), within two hours of a specific 1 time, set in policy, procedure, or orders, for administration. These set times 2 shall be at reasonable times of the day. 3 10.2.2. For medications ordered at an hourly frequency of every eight hours (“q. 8 4 hrs.”) or more frequently, or intermediate acting insulin, within one hour of a 5 specific time, set in policy, procedure, or orders, for administration. 6 10.2.3. For regular insulin, within thirty minutes of serving a meal, and for fast- 7 acting insulin within fifteen minutes of the serving of a meal. 8 10.2.4. For all other medications, at the times of the day ordered. 9 10.2.5. For a prisoner newly admitted to a facility (e.g., transfer from another 10 facility, return from a hospital stay, admission from a jail) and already on a 11 medication in their previous venue, the first dose of a medication shall be 12 delivered keep-on-person (“KOP”) or administered (“DOT”) in time for their 13 next regularly scheduled dose. 14 10.2.6. For all other prisoners, the first dose of a newly ordered medication shall be 15 delivered (“KOP”) or administered (“DOT”) within the timeframe ordered, or 16 if no timeframe is specified, within twelve hours for antibiotics and pain 17 medications, and within three days for all other medications. 18 10.3. Unavailability of the prisoner (e.g., “no-show”) or unavailability of the 19 medication (e.g., gap due to delayed refill or renewal) are not valid reasons for non- 20 administration. Refusal is a valid reason, but only if the refusal is expressed, face- 21 to-face between the prisoner and the health care staff, and if the medication refusal 22 policy is followed. Defendants shall have a medication refusal policy containing 23 the following elements: 24 10.3.1. When a prisoner refuses a medication (or classes of medication), based on 25 the specific medication or class and the number and pattern of refusals, the 26 medication administrator shall be triggered to escalate the case to a higher 27 authority and within a specified amount of time (which may differ by 28 medication or class). Defendants should use clinical judgment in setting the 1 refusal pattern for each medication or class and timeframe for escalation. The 2 decision rules described above should be incorporated into the medication 3 administration software of the EHR such that the EHR automatically alerts the 4 medication administrator when action is needed and what action is needed, 5 rather than relying on administrators’ memory. 6 10.3.2. The higher authority referenced in the preceding paragraph shall be an RN 7 or appropriately licensed practitioner who is then responsible for: determining 8 the reason for the refusal and securing the prisoner’s adherence with the 9 medication, or finding a clinically appropriate alternative treatment, or assuring 10 that the prisoner is making an informed refusal, or assuring the execution of 11 whatever clinically appropriate action is ordered by a prescriber. 12 10.3.3. Signed refusals by the prisoner are not required. 13 10.4. KOP Medication 14 10.4.1. When prisoners request approved refills or renewals of a KOP medication, 15 the medication shall be delivered to the prisoner before the medication runs out 16 (based on the date of the previous fill) provided the prisoner attempted to 17 submit the request within the required timeframe. A KOP medication shall be 18 delivered either by providing the prisoner with the KOP supply or by staff 19 administering the medication from stock, dose by dose, to bridge the gap until 20 the KOP supply is delivered. Additional medication need not be delivered 21 before the previous fill runs out if a clinically appropriate and documented 22 determination was made by a prescriber that the medication should not be 23 continued and the prisoner is so informed. 24 10.5. Other Medication Provisions 25 10.5.1. To decrease staff time spent on medication delivery, Defendants are 26 encouraged, but not required, to modify their medication management practice 27 by establishing a list of medications which are, by default, provided to 28 prisoners as KOP. The list would be developed by health care staff in 1 collaboration with custody staff to account for both medical and penological 2 needs. Policy exceptions could be made for certain classifications or housing 3 of prisoners, for example, prisoners in an inpatient medical or mental health 4 unit, prisoners at high mental health level, etc. For all other prisoners, 5 prescribers would be required to write a specific order and justification if they 6 wanted a prisoner to receive a medication by DOT. Such orders would require 7 renewal periodically. The policy could address the need for certain prisoners 8 on DOT medications to learn how to manage and self-administer medications 9 as they prepare for re-entry. 10 10.5.2. To decrease staff time spent on medication delivery, Defendants are 11 encouraged, but not required, to make some of the over-the-counter 12 medications its practitioners prescribe available, free-of-charge and upon 13 request, from living unit officers or health care staff in FDA-approved unit dose 14 packaging. 15 10.5.3. Prisoners released to the community shall receive a supply of medication 16 sufficient to ensure either (a) the prisoner has medication available for a 17 sufficient length of time to allow the prisoner to obtain and attend an 18 appointment with a community practitioner qualified to order a new supply, or 19 (b) to complete the course of therapy, whichever is shorter. 20 10.5.4. Prisoners with asthma who are at significant risk of serious respiratory 21 impairment if they do not use their rescue inhaler immediately, shall be 22 provided a rescue inhaler KOP. Exceptions may be made for prisoners living 23 in a unit with 24-hour nursing and access to an emergency call button. 24 Exceptions may also be made for prisoners where Defendants can document a 25 significant and serious penological need to prohibit a particular prisoner from 26 having such an inhaler. This exception must be prisoner-specific and 27 Defendants cannot apply a policy prohibiting KOP inhalers for all prisoners. 28 1 10.5.5. Prisoners with diabetes who are at significant risk of hypoglycemia shall be 2 provided a source of glucose KOP. Exceptions may be made for prisoners 3 living in a unit with 24-hour nursing and access to an emergency call button. 4 10.5.6. Prisoners prescribed rapid-delivery nitroglycerin for cardiac disease shall be 5 provided the medication KOP. Exceptions may be made for prisoners living 6 in a unit with 24-hour nursing and access to an emergency call button. 7 11. Disease Specific Requirements 8 11.1. Hepatitis C 9 11.1.1. Prisoners shall receive treatment for hepatitis C infection (“HCV”) 10 according to the following requirements: 11 11.1.1.1. All prisoners are screened (by blood test) for HCV within a month of 12 arrival, and periodically, based on risk, in accordance with CDC 13 recommendations. 14 11.1.1.2. Defendants may wait up to six months after the date of first 15 confirmation of the current infection (or a month after learning such date 16 if infection was established prior to admission to prison) to begin 17 treatment to those with sustained infection who agree to treatment, 18 regardless of degree of fibrosis, except for those with advanced or 19 decompensated cirrhosis. 20 11.1.2. Exceptions to treatment may be made for those prisoners: 21 11.1.2.1. with markedly reduced life expectancy who would not be expected to 22 benefit from treatment, or 23 11.1.2.2. prisoners who cannot complete treatment within the timeframe of their 24 incarceration and linkage to care in the community for continuation of 25 treatment cannot be established despite a good faith effort. 26 11.1.3. Within two months of issuance of this Order, all current prisoners who have 27 not been screened for HCV shall be offered screening, and all who screen 28 positive, have viremia based on an RNA test, and indicate willingness to be 1 treated shall receive treatment within the time parameters set out within this 2 Order. 3 11.1.4. All prisoners with HCV infection shall be placed on a single list prioritized 4 according to a scheme that considers degree of fibrosis, relevant comorbidities, 5 likelihood of transmitting infection to others in the prison, and release date. 6 11.1.5. Within six months of issuance of this Order, using the prioritized list, 7 Defendants shall begin treatment each month of at least the following number 8 of prisoners: 110 prisoners plus 70% of the number of newly admitted prisoners 9 who tested positive for HCV during the previous month.7 For example, if 100 10 prisoners admitted during the month of January tested positive for HCV, 11 Defendants shall begin HCV treatment of the next 180 prisoners on the 12 prioritized list, during the month of February. Defendants may calculate the 13 number of newly admitted prisoners testing positive during January based on 14 the date of admission or the date of the test results (because prisoners may not 15 be tested during the month of arrival and test results may not be completed 16 during the month of arrival). Once Defendants have chosen a method of 17 calculation, they shall continue to use the same method. Until they begin 18 treating prisoners on the prioritized list, Defendants shall continue their current 19 practice of initiating treatment of all prisoners identified as having more 20 advanced hepatitis C, i.e., scores of F3 and F4. Once Defendants begin using 21 the prioritized list, Defendants may include all prisoners, including those with 22 scores of F3 and F4, in the calculation of the number of prisoners treated 23 monthly. 24
25 7 This requirement is based on three assumptions using the best data currently available: (1) 83% of newly admitted prisoners with HCV remain in the nine publicly operated 26 facilities and 17% move to one of the seven privately operated facilities; (2) 85% of prisoners diagnosed with HCV will agree to treatment; and (3) it is necessary to treat 100 27 current prisoners with HCV in the public facilities who have not yet been treated in order to complete treatment of this population within approximately four years. If these 28 assumptions prove significantly incorrect, from time to time the Monitors may adjust the required level of treatment. 1 11.1.6. No later than one year after issuance of this Order, no prisoner who is 2 released on their planned release date shall release without having been 3 screened for HCV and if positive and they accept treatment, without having 4 completed treatment except as identified in 11.1.1.2 and 11.1.2.2. 5 11.1.7. All prisoners with HCV shall be offered education about HCV, whether they 6 receive treatment or not. 7 11.1.8. All HCV screening is offered under opt-out conditions. 8 11.1.9. All HCV treatment shall use the current standard of care medications. 9 11.2. Tuberculosis 10 Unless ADCRR, as a system, is determined by the monitors to be at minimal risk 11 with regard to tuberculosis according to CDC guidelines, all newly admitted prisoners shall 12 have a completed test for tuberculosis (skin test, blood test, or chest x-ray) by the end of 13 the third full day after admission into the ADCRR system, unless the prisoner refuses. The 14 men’s and women’s facilities may be considered separately in determining the CDC-based 15 system risk level. 16 11.3. Substance Abuse Disorder 17 11.3.1. All newly admitted prisoners shall be screened for, and if indicated then 18 evaluated for, substance use disorder. Screening shall include assessment as to 19 a history of opioid overdose. 20 11.3.2. All newly admitted prisoners shall be offered to have current Medication for 21 Opioid Use Disorder (“MOUD”) (buprenorphine, naltrexone) continued. 22 11.3.3. All pregnant or post-partum prisoners with diagnosed Opioid Use Disorder 23 (“OUD”) shall be offered to have current MOUD (buprenorphine, naltrexone, 24 methadone) continued, or if not currently on MOUD, shall be offered to initiate 25 treatment with buprenorphine or naltrexone. 26 11.3.4. No later than two months after issuance of this order, all prisoners who have 27 a documented history of overdose or who upon assessment are determined to 28 1 be at imminent risk of an opioid overdose, shall be offered MOUD with 2 buprenorphine or naltrexone. 3 11.3.5. No later than two months after issuance of this Order, all prisoners offered 4 treatment for HCV shall be evaluated for OUD and if found to have OUD, shall 5 be offered MOUD with buprenorphine or naltrexone. 6 11.3.6. Within six months of the issuance of this Order, and every six months 7 thereafter, the Department will offer MOUD in three new facilities, including 8 counseling, if appropriate, and including medication treatment for alcohol. The 9 Department will take the necessary steps to ensure that any patient transferring 10 to another facility will not experience an interruption in MOUD, counseling, 11 or alcohol treatment. 12 11.4. Immunization 13 Prisoners shall be offered all immunizations recommended by a mainstream 14 evidence-based national guideline. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Mental Health 2 Based on the credible trial testimony, the mental health treatment regime 3 Defendants employ is profoundly lacking and results in grossly insufficient care, creating 4 an unconstitutional substantial risk of serious harm. Similar to the medical care 5 requirements, the central aspect of relief regarding mental health care will be a mandate 6 that Defendants increase staffing. To ensure adequate staffing, and to allow for monitoring, 7 Defendants shall adopt a caseload-based staffing formula. The staffing formula and other 8 requirements are based on Defendants’ mental health scoring system already in place. 9 (Doc. 4335 at 15 n.1). Any changes to that scoring system will necessitate changes to the 10 staffing formula. Defendants shall inform the monitors immediately upon any changes to 11 the scoring system. 12 13. Mental Health Staffing 13 13.1. Within three months of this Order, Defendants shall hire an additional two 14 psychiatric prescribers, ten psych associates and three psychologists to be allocated 15 at the six corridor facilities based on patient need. Defendants may use registry and 16 locum tenens to hire these positions, but will be required to have no more than 15% 17 locum tenens and registry in each of these job categories within six months of the 18 signing of the order. “PP” refers to psychiatric practitioner while “PT” refers to 19 primary therapist (i.e., psych associate or psychologist): 20 13.1.1. Pending the outcome of a staffing analysis and plan, outpatient 21 psychologists shall supervise no more than eight psych associates, and inpatient 22 psychologists shall supervise no more than six psych associates. 23 13.2. A MH Duty Officer shall be available at all times when facility mental health staff 24 are not available. The MH Duty Officer shall be a licensed psych associate, 25 psychologist, or psychiatric practitioner. 26 14. Staffing Qualifications 27 14.1. All psychiatrists–at hiring and during employment–shall be board certified in 28 psychiatry, or board eligible if within 7 years of their completion of an ACGME 1 approved residency in psychiatry, with the following exceptions: 1) supervising 2 psychiatrists shall be board certified at hiring and during employment; 2) 3 psychiatrists who are currently employed and are not board eligible may remain 4 employed for no longer than one year of issuance of this Order. 5 14.2. All psychologists and psychiatric practitioners shall have the appropriate state 6 licenses. All psych associates shall be licensed or become licensed within one year 7 of hiring or within one year of this Order, whichever is later. 8 15. Model of Care 9 15.1. Each prisoner on the mental health caseload, i.e., all prisoners in MH Levels 3, 4, 10 and 5, shall be assigned a PT who serves as the single point of contact and 11 coordination for providing care for that prisoner. PTs shall be psych associates or 12 psychologists. When a prisoner’s assigned PT is unavailable, another psych 13 associate or psychologist acts on their behalf. Except as noted elsewhere, generally 14 a new PT shall be assigned when a prisoner’s living unit changes and the current 15 PT does not cover that unit, e.g., when the prisoner’s yard or MH Level of Care 16 changes. 17 15.2. A psychologist shall review the records of each prisoner who is added to, or 18 discharged from, the mental health caseload. The psychologist shall provide 19 appropriate documentation of this review in the prisoner’s health record. 20 15.3. Prisoners on the mental health caseload who believe they need mental health care 21 shall submit HNRs. The primary therapist or, if necessary, another psych associate 22 shall triage HNRs within 24 hours of receipt. “Triage” in this context means 23 determining whether the request requires immediate attention and resolution or 24 whether the request can safely be deferred until the primary therapist can address 25 it. Documenting the word “Triaged” is adequate evidence of triage. Primary 26 therapists shall address the HNR within three business days of its submission. 27 “Address” means evaluating the request, determining the clinical need, and if an 28 action is required (e.g., face-to-face visit), planning that action to occur in a 1 clinically appropriate timeframe. When the primary therapist is absent, another 2 psych associate or a psychologist completes these tasks in their stead within the 3 same time. 4 15.4. If a prisoner’s PT determines a visit is clinically appropriate, the prisoner shall be 5 seen by the PT or referred to another professional as directed by the PT. 6 15.5. Prisoners who are not yet on the mental health caseload but request mental health 7 treatment shall submit requests to be seen through the procedures for seeking 8 medical care. 9 15.6. Defendants shall modify their policies to create a formal process for custody staff, 10 families, or any other concerned party to refer a prisoner for mental health 11 assessment and for timely response to the concern by mental health staff. 12 15.7. Defendants are encouraged, but not required, to allow MH-3C and MH-3E 13 prisoners who would otherwise meet the custody classification requirements, to be 14 housed at the Douglas, Winslow, and Safford Complexes. Telehealth may be used. 15 15.8. Defendants shall ensure the formulary for psychotropic medications is no broader 16 than the formulary used by AHCCCS. For prisoners admitted to ADCRR on a 17 psychotropic which is not on ADCRR’s formulary: 18 15.8.1. The medication shall be continued if, based on the prisoner’s history, there 19 is significant risk of worsening of the condition if a different medication is 20 prescribed. 21 15.8.2. If no such risk exists, the medication shall be continued long enough to allow 22 a safe transition to a different medication or medications. 23 15.9. Defendants shall ensure there is sufficient physical space to meet the treatment 24 requirements of the mental health care system. This includes, but is not limited to, 25 areas for mentally ill prisoners to be housed, engage in programming, and receive 26 treatment (both individual and group) in a confidential environment commensurate 27 with that unit/facility’s designated level of care. 28 1 2 16. Content of Care 3 16.1. Defendants shall ensure a psych associate or psychologist conducts a mental 4 health assessment of each prisoner within one business day of that prisoner first 5 entering the ADCRR system. This assessment shall occur in a confidential 6 therapeutically appropriate setting unless there is a clinical or legitimate and 7 substantial safety and security concern that is documented. 8 16.2. The assessment shall identify and document sufficient relevant information 9 regarding the presence and severity of mental health symptoms; current impact on 10 functioning; past hospitalization/treatment including response to treatment; 11 medications; suicide risk; behavioral observations of staff; and a preliminary 12 designation of level of care. 13 16.3. Outpatient 14 16.3.1. Prisoners at an outpatient level of care (i.e., MH-3) shall have the following 15 evaluations by their assigned PT: 16 16.3.1.1. an initial comprehensive mental health evaluation within one month of 17 arriving at the assigned facility if not already completed when the prisoner 18 first entered the prison system; 19 16.3.1.2. whenever clinically indicated to reflect a change in service delivery; 20 16.3.1.3. at least once per year. 21 16.3.2. A psychiatric practitioner shall conduct an appropriate clinical encounter 22 with all prisoners in an outpatient level of care (i.e., MH-3) on psychotropic 23 medications as often as clinically required, but no less often than every three 24 months. 25 16.3.3. A treatment plan meeting shall be conducted with the prisoner and their PT. 26 A psychologist or psychiatric practitioner shall also be present for complex 27 cases and in all other cases shall provide input to the PT prior to the treatment 28 plan meeting. At that meeting, the prisoner’s treatment plan shall be reviewed 1 and updated to determine adherence to treatment, efficacy of interventions, 2 evaluation of the level of care needs, diagnostic impressions, progress to date 3 in treatment, and steps taken toward moving to a less restrictive environment, 4 if applicable. The timing of the treatment plan meetings should be based on 5 the needs identified in the treatment plan, but no less often than once a year. 6 The treatment plan shall include a date for next review based on the content of 7 the plan. If no timeline is identified, a treatment plan meeting shall occur at 8 least once per year. 9 16.4. Residential 10 16.4.1. All prisoners in residential level of care (i.e., MH-4) shall have the following 11 evaluations by their primary therapist: 12 16.4.1.1. whenever there is a significant change in the course of treatment, e.g., 13 new type of treatment including medication, significant decompensation; 14 16.4.1.2. at least annually, documenting the prisoner’s need for residential level 15 of care. 16 16.4.2. Prisoners in residential level of care shall have face-to-face encounters 17 with their assigned PTs as determined by the treatment plan. 18 16.4.3. Prisoners in residential level of care shall have their treatment plans 19 reviewed and updated as clinically indicated but no less often than every three 20 months when the full team meeting described in the next section is conducted 21 16.4.4. A full team meeting shall be conducted at least every three months to 22 include: primary therapist, psychologist, psychiatric practitioner, and any 23 other staff as necessary. Prisoners shall be included in the meeting unless 24 there is a clinical or legitimate and substantial safety and security concern 25 documented in the custody record. That meeting shall include: determination 26 of adherence to treatment, efficacy of interventions, evaluation of their level 27 of care needs, rationale for the need for residential care, diagnostic 28 1 impressions, progress to date in treatment, and steps taken toward moving to 2 a less restrictive environment. 3 16.4.5. Prisoners in residential level of care shall have an appropriate clinical 4 encounter with a psychiatric practitioner as often as indicated, but no less 5 than every fourteen days. 6 16.5. Inpatient 7 16.5.1. All prisoners in inpatient level of care (i.e., MH-5) shall have the following 8 evaluations conducted by their PT if already on the mental health caseload 9 (otherwise by the mental health provider assigned to the inpatient unit): 10 16.5.1.1. at least annually a comprehensive mental health evaluation reflecting 11 rationale for inpatient placement including but not limited to current 12 symptoms and functional impairment, timing and pattern of 13 decompensation, interventions attempted, diagnostic impressions 14 (including potential substance-related impacts), progress in treatment to 15 date, goals for treatment in the inpatient setting, anticipated length of 16 stay, and criteria for discharge; 17 16.5.1.2. upon discharge from inpatient care, a discharge summary. 18 16.5.2. Prisoners in inpatient level of care shall have a daily face-to-face encounter 19 with their PT unless such an encounter would be clinically contraindicated. If 20 the prisoner participates in the weekly treatment progress meeting described 21 in Section 15.5.3), it may be counted as a daily face-to-face encounter. 22 16.5.3. Prisoners in inpatient level of care shall have their treatment progress 23 reviewed daily, and teams shall meet at least weekly with all providers (e.g., 24 nursing, psychiatry, mental health, social work, custody/unit staff, behavioral 25 health technicians) and providers from the prisoner’s previously assigned unit 26 whenever possible. Prisoners shall be included in the meeting unless there is 27 a clinical or legitimate and substantial safety and security concern 28 documented. At a minimum, the focus of treatment teams shall be to provide 1 updates on prisoner progress, the type and efficacy of interventions used, 2 treatment adherence, potential obstacles to recovery, and rationale for 3 continued placement in the inpatient unit. 4 16.5.4. A psychiatric practitioner shall conduct a clinical encounter with all 5 prisoners in an inpatient level of care (i.e., MH5) as often as indicated, but no 6 less than once per week. 7 16.6. Mental health care shall continue without interruption despite non-clinical events 8 or conditions. If a prisoner’s treatment team changes due to a change in the 9 prisoner’s mental health level of care: 10 16.6.1. The “original” PT shall provide the “new” mental health team with the 11 rationale for the change in mental health level and the anticipated treatment 12 needs; 13 16.6.2. If the transition is to anything other than to residential or inpatient, the 14 “new” PT meets with the prisoner within seven calendar days; 15 16.6.3. If the transition is to residential or inpatient level of care: 16 16.6.3.1. the PT meets with the prisoner as soon as possible, but no more than 17 one business day after arrival; 18 16.6.3.2. the psychiatric practitioner is contacted and collaborates on the 19 immediate care plan as soon as a prisoner is admitted. 20 16.6.4. If a prisoner’s PT changes without a change in mental health level of care: 21 16.6.4.1. If the transition is to anything other than to residential or inpatient, 22 the “new” PT meets with the prisoner within seven calendar days; 23 16.6.4.2. If the transition is to residential or inpatient level of care, the “new” 24 PT meets with the prisoner within one business day. 25 16.6.4.3. If the change is due to a change in assignment of personnel, not a 26 transition of the prisoner, the newly assigned PT shall meet with the 27 prisoner in accordance with the scheduled follow-up established in the 28 prisoner’s treatment plan by the previous PT, but no later than the 1 following interval after the assignment of the new PT: one business day 2 for prisoners in inpatient level care, 14 calendar days for prisoners in 3 residential care, and three months for prisoners in all other levels of care. 4 16.7. All mental health encounters with all prisoners shall occur in a confidential, 5 therapeutically appropriate setting unless there is a clinical or legitimate and 6 substantial safety and security concern that is documented. 7 16.8. Suicide Prevention 8 16.8.1. During normal business hours a prisoner who presents as a suicide risk shall 9 have a formal in-person suicide risk assessment completed by a licensed psych 10 associate, psychologist, or psychiatric practitioner to determine the acute 11 suicidal risk and the level of protection that is needed (e.g., return to current 12 housing, placement in one-on-one observation, etc.). If the concerns are raised 13 after normal business hours or on holidays, the on-duty mental health officer 14 shall be consulted regarding the disposition of the prisoner (which may or may 15 not include constant observation). If the prisoner is placed on suicide watch as 16 a result of the concerns raised, they should be placed under constant 17 observation until they are able to have an in-person assessment of suicide risk 18 by a mental health professional. 19 16.8.2. Defendants are encouraged, but not required, to engage appropriately trained 20 and supervised Behavioral Health Technicians to substitute for correctional 21 officers as the individuals responsible for providing safety observation of, and 22 engagement with, an individual (or cohort of individuals) on suicide watch 23 depending on staffing needs of a particular location. 24 16.8.3. Upon recommendation from a psychologist or psychiatric practitioner that 25 housing a prisoner on suicide watch in the same room with other suicide watch 26 prisoners (“cohorting”) would be clinically safer than housing each prisoner in 27 isolation, Defendants shall cohort such prisoners, provided that based on the 28 prisoners’ custody classification (determined based on factors other than the 1 fact that the individual is on suicide watch) such cohorting would not be 2 contraindicated. 3 16.9. Crisis Stabilization 4 16.9.1. Crisis stabilization beds shall be used for short term (typically only a few 5 days) management of prisoners who require acute care, e.g., suicide watch. 6 16.9.2. Continued treatment in a crisis stabilization bed requires review and 7 approval by a psychologist initially at seven days and every three days 8 thereafter. Starting at ten days following placement in a Crisis Stabilization 9 bed, the psychologist and or psychiatric prescriber shall document the 10 justification for their continued assignment to the Crisis Stabilization bed rather 11 than a Residential or Inpatient bed. 12 16.9.3. Prisoners in a crisis stabilization bed shall be evaluated at least daily in 13 person by their PT (or another psych associate if they have not yet been 14 assigned a PT or have transferred from another yard). Treatment providers shall 15 document their intervention efforts, including but not limited to: assessing 16 mental status; behavioral observations; documenting prisoner ability to 17 independently care for activities of daily living; type(s) of treatment provided; 18 response to interventions (including medication efficacy and compliance); 19 anticipated length of stay; and criteria for discharge. 20 16.9.4. The prisoner shall be assessed by a psychiatric practitioner as soon after 21 admission as possible but no longer than one business day, in order to ensure 22 there is not a medication issue or a question of medication appropriateness that 23 contributed to suicidal ideation. 24 16.9.5. For prisoners placed in a crisis stabilization bed for suicidal concerns, a 25 suicide risk assessment shall be completed upon admission that identifies risk 26 and protective factors and items/privileges they are allowed (based on 27 treatment needs) while in crisis care. 28 1 16.9.6. A clinical note shall be entered whenever the level of suicide watch is 2 changed. 3 16.9.7. Prior to being released from a crisis stabilization bed if placed there due to 4 suicidal concerns, a discharge suicide risk assessment shall be completed which 5 documents: the change/reduction in suicidal risk; the prisoner’s identified 6 protective factors; and plans for follow-up treatment, and aftercare including a 7 safety plan developed in collaboration between the prisoner and treatment 8 providers. 9 16.9.8. “Safety contracts” (forms signed by prisoners, agreeing not to hurt 10 themselves) shall not be used. 11 16.9.9. Transferring a prisoner in crisis to a different yard or complex can be 12 clinically disruptive. When possible and safe, Defendants shall attempt to 13 provide stabilization at the complex at which the prisoner has been housed 14 unless there is documented clinical justification for transfer based on the low 15 likelihood of stabilization and/or clinical danger if the prisoner is maintained 16 at the complex. 17 16.10. Restraints used by mental health clinicians for clinical purposes shall comply 18 with the following: 19 16.10.1. Restraints shall be used only to prevent harm to oneself or to others and to 20 ensure the safety and security of the staff and other prisoners. They shall not 21 be used for punishment. 22 16.10.2. Restraints shall be ordered and reviewed only by a psychiatric practitioner 23 or psychologist. 24 16.10.3. Restraints shall only be applied for the minimum amount of time necessary 25 to accomplish the stated need (e.g., prisoner and staff safety, requisite 26 transports, etc.). 27 16.10.4. Soft restraints shall be used whenever possible. 28 1 16.10.5. Subject to the following section, restraints shall not be used for more than 2 four hours at a time. Every effort shall be made to minimize the length of time 3 in restraints. 4 16.10.6. Renewal of restraints beyond four hours shall be approved by the Facility 5 Medical Director/designee and must be renewed at intervals no longer than four 6 hours. If the Medical Director/designee are not available, a licensed mental 7 health provider may approve continued use. The justification for continued use 8 shall be documented in the prisoner’s medical records. Renewals occurring 9 after hours shall be done in collaboration with the Facility Medical 10 Director/designee, a psychiatric practitioner, or a psychologist. 11 16.10.7. Prisoners shall be restrained only in settings that allow nurses sufficient 12 access to perform wellness checks and provide necessary medical care. Nurses 13 shall ensure that the restraints do not impair any essential health needs, such as 14 breathing or circulation to the extremities. These checks shall be documented 15 in the prisoner’s medical records. 16 16.10.8. Prisoners in restraints shall be under direct observation at all times. If an 17 observer notes any ill effects of the restraints, every effort shall be made to 18 remedy the ill effects and a psychiatric or medical practitioner shall be notified 19 immediately. 20 17. Training 21 17.1. The Court recommends, but does not require, Defendants provide additional 22 training for all custody staff regarding mental illness and suicide prevention and 23 response. 24 17.2. Additional training would be conducted in-person at orientation/CORE training, 25 annual in-service, and whenever clinically indicated at any given facility. 26 17.2.1. Topics would include, but not limited to: signs and symptoms of mental 27 illness and decompensation patterns; working with mentally ill prisoners; 28 suicide risk detection, prevention, and response; individualized Behavior 1 Management Plans; de-escalation techniques; additional training for staff 2 assigned to living units that house sub-class members, those in isolation, and 3 those in Crisis Stabilization/Suicide Watch regarding therapeutic intervention 4 strategies specifically suited to this population. 5 18. Release to Community 6 18.1. Defendants shall comply with the following regarding any prisoner designated 7 as Seriously Mental Ill (“SMI”), MH-4, or MH-5 who shall be released and who is 8 presumptively eligible for federal or state assistance by virtue of their mental 9 illness: 10 18.1.1. Defendants shall develop and document an aftercare plan that reflects the 11 prisoner’s current symptoms and functional impairments, progress in 12 treatment, and treatment plan; 13 18.1.2. Defendants shall facilitate evaluation for SMI designation and placement in 14 the community, as clinically indicated; and 15 18.1.3. Defendants shall arrange follow-up care with an appropriate community 16 provider where possible. 17 19. Involuntary Medication 18 19.1. Defendants are encouraged, but not required, to modify their policy to include 19 grave disability as an indication for involuntary antipsychotic medications. 20 21 22 23 24 25 26 27 28 1 Relief for Prisoners in Isolation 2 The subclass consists of “[a]ll prisoners who are now, or will in the future be, 3 subjected by the ADC to isolation, defined as confinement in a cell for 22 hours or more 4 each day.” (Doc. 4335 at 123). This definition is broader than those prisoners housed at 5 particular complexes or those prisoners with particular classifications (e.g., maximum 6 custody). The evidence at trial, however, established the members of the subclass were 7 those prisoners: 8 (a) Formally classified as “maximum custody” pursuant to DO 801; 9 (b) Housed in a detention unit pursuant to DO 804; 10 (c) Placed on mental health watch pursuant to DO 807; and 11 (d) Placed in close management status pursuant to DO 813. 12 (Doc. 4335 at 136). It is possible prisoners outside of these four classifications will become 13 subclass members. For example, if Defendants restricted minimum custody prisoners to 14 their cells for more than 22 hours each day, such prisoners would become members of the 15 subclass. However, there was no evidence at trial of this actually occurring. For purposes 16 of the injunction, the subclass will be construed as encompassing the four classifications 17 outlined above as well as those possible additions referenced in Section 27.1. For purposes 18 of the following sections only, “prisoners” will refer to members of the subclass. 19 As with the medical care and mental health care, the unconstitutional conditions 20 imposed on prisoners can be attributed in large part to the lack of adequate staffing. The 21 Court found the staffing levels at two locations housing prisoners were “far below what 22 prison officials acknowledge as necessary to operate the units safely.” (Doc. 4335 at 148). 23 The lack of adequate staffing resulted in Defendants performing fewer welfare checks on 24 prisoners and the checks actually performed were perfunctory. (Doc. 4335 at 147-48). The 25 lack of adequate staffing also meant offers for out-of-cell time were “not made, [were] not 26 legitimate, or [were] accompanied by unreasonable consequences.” (Doc. 4335 at 156). 27 Connected to the lack of staffing, the Court found Defendants’ recordkeeping 28 practices were haphazard and often unreliable. The Court found Defendants knowingly 1 created documents in a false or misleading manner. (Doc. 4335 at 152). The Court also 2 found Defendants “pre-filled” forms for entire weeks, meaning there was no evidence of 3 “what truly happened.” (Doc. 4335 at 157). Even when documentation was generated 4 indicating unconstitutional treatment, there was no evidence Defendants took corrective 5 action. 6 Finally, the Court found Defendants’ initial classification decisions are not 7 supported by legitimate penological interests. In addition, Defendants place or keep 8 prisoners in restrictive conditions even when Defendants agree those prisoners should be 9 housed elsewhere. For example, two Deputy Wardens admitted there were prisoners being 10 held in maximum custody who should have been housed in less-restrictive environments. 11 (Doc. 4335 at 142-43). While Defendants have a policy allowing prisoners to “earn their 12 way” into placement in less-restrictive environments, that policy is administered “in a 13 random and chaotic way.” (Doc. 4335 at 162). Thus, Defendants’ administration of their 14 policies for placing, keeping, and removing prisoners from the most restrictive 15 environments were not supported by legitimate penological purposes. 16 The unconstitutional treatment of prisoners can be directly attributed to inadequate 17 staffing, unreliable or nonexistent records, Defendants’ failure to review their records 18 indicating there were problems, Defendants’ classification policies, and Defendants’ 19 failure to implement their own policies. These basic findings support the expert’s 20 recommendations for the following requirements. 21 19. Basic Requirement 22 19.1. Defendants shall ensure all custody decisions and reviews made by correctional 23 officers, supervisors, and committees are reasonable and consistent with legitimate 24 penological interests. 25 19.2. Every prisoner is housed in the least restrictive level that is safe for them and 26 others. 27 19.3. No prisoner shall be confined in a cell for 22 hours or more each day for more 28 than two months unless there are extraordinary documented legitimate penological 1 interests. Defendants shall implement a system to facilitate the return to lower 2 levels of custody for those prisoners who have been in the subclass for longer than 3 two months8, and document their efforts. 4 19.4. No prisoner under the age of 18 shall be placed into maximum custody, detention, 5 or close management, or otherwise kept in a cell for more than 22 hours each day. 6 19.5. Within sixty days of this Order, no prisoner designated as Seriously Mentally Ill 7 (“SMI”) shall be housed in maximum custody, detention, or close management, or 8 otherwise kept in a cell for more than 22 hours each day. 9 20. Staffing 10 20.1. To determine the minimum number of staff to safely operate the locations where 11 prisoners are held, including sufficient staff to allow for out-of-cell time, the Court 12 will appoint an expert, Mr. Scott Frakes, to conduct a staffing analysis and plan of 13 custody positions at each location. Mr. Frakes may appoint additional 14 appropriately qualified and credentialed staff to assist in his work. The experts’ 15 services shall be paid by Defendants. The staffing analysis and plan shall be filed 16 with the Court within six months from the date of this Order. The plan shall 17 designate each post as Mandatory, Essential, or Important. The plan shall contain 18 recommendations that shall be reviewed by the Court and, if approved, ordered by 19 the Court. Any objections to the staffing plan and recommendations by the parties 20 shall be filed within ten days and a response to the objections shall be filed within 21 ten days thereafter. 22 20.2. Upon receiving the staffing analysis and plan from the expert, the Court 23 anticipates ordering Defendants to comply with what follows. 24 20.2.1. Defendants shall staff all Mandatory Posts at all times; Essential Posts shall 25 be staffed at least 75%; Important Posts shall be staffed at least 50%. If 26 ADCRR falls below these levels, it shall inform the Court within seven days.
27 8 If Defendants transfer members of the subclass to private prisons, the members of the subclass shall not be treated inconsistently with this order. At present, Defendants house 28 prisoners in seven private facilities (Central Arizona Correctional Facility, Florence West, Kingman, La Palma, Marana, Phoenix West, and Red Rock Correctional Center). 1 The failure to maintain the required staffing levels will not be an acceptable 2 excuse for any other failure to meet requirements in this Order. 3 20.2.2. Defendants shall document on an annual basis an assessment of the 4 operative staffing plan and document any requests for necessary adjustments 5 to the plan. The assessment shall be filed with the Court on the last business 6 day of January each year. 7 20.2.3. Whenever Defendants fail to comply with the staffing levels, Defendants 8 shall file with the Court a “Deviation from Staffing Plan Report” by the tenth 9 day of the following month. That report shall specifically identify the 10 deviation(s) that occurred and provide reasonable and adequate justifications 11 for the deviation(s). 12 20.3. While awaiting the expert’s staffing analysis and plan, Defendants shall begin 13 compiling data such that they can submit the following information: 14 20.3.1. Beginning on May 1, 2023, and every quarter thereafter (i.e., March 31, June 15 30, September 30, December 31), Defendants shall file with the Court a 16 “Correctional Staffing Report.” Each quarterly report shall include: 17 • the number of correctional staff assigned to each facility. 18 • the number of correctional staff still employed by each facility 19 at the end of the quarter. 20 • the turnover rate, that is, the number of voluntary and 21 involuntary terminations during the quarter divided by the 22 total number of correctional staff assigned at the end of the 23 quarter, including each figure in the calculation in addition to 24 the ultimate result. 25 • the retention rate, that is, the total number of correctional staff 26 at a facility who have worked for that facility for twelve 27 months or longer divided by the total number of correctional 28 1 staff assigned at the end of the quarter, including each figure 2 in the calculation in addition to the ultimate result. 3 • the total number of overtime hours for correctional staff at 4 each facility for the quarter; and the vacancy rate (number of 5 vacant positions at the end of the quarter divided by the total 6 number of correctional staff and vacant positions at the end of 7 the quarter). 8 20.4. Increased salaries may be necessary for Defendants to reach adequate staffing 9 levels. The Court will not order increased salaries at this time. Defendants are 10 warned that if they are unable to recruit and retain sufficient staff, the Court will 11 consider mandating salary increases. 12 20.5. At a later date, the Court will consider ordering custody staff be afforded at least 13 8 hours of rest between shifts and that staff who are required to commute more than 14 130 miles shall not be subjected to additional work assignments that occur before 15 or after their normal working hours. Imposition of these limits may occur if 16 Defendants are deemed overly reliant on overtime to perform critical duties. 17 Reliance on overtime can be a temporary solution but it creates a grave risk of 18 staffing shortages should individuals discontinue volunteering for overtime. 19 21. Recordkeeping9 20 21.1. Defendants shall install and fully implement an electronic offender management 21 record keeping Web-based software application (“EOMS”) that is accessible via 22 standard Web browsers. 23 21.2. Within one month of the issuance of this Order, Defendants shall retain a 24 communications engineer to conduct an assessment of the technical requirements 25 to install the EOMS at the designated sites. 26 9 Normally, requiring data collection in whatever form Defendants deem appropriate would 27 be the less intrusive way of tracking compliance. However, Defendants’ documented inability to generate reliable and accurate paper records requires the Court mandate 28 installation of an electronic recordkeeping system that ensures against falsification of records. 1 21.3. By July 1, 2023, Defendants shall activate the current EOMS pilot program at the 2 Browning Unit and shall evaluate its functionality over the ensuing two months. 3 21.4. By September 1, 2023, Defendants shall issue a Request for Proposals to install 4 the EOMS at the designated sites. 5 21.5. By December 31, 2023, Defendants shall award a contract for the installation of 6 EOMS at the designated sites. 7 21.6. By December 31, 2024, Defendants shall have installed and fully implemented 8 the EOMS at all designated sites. 9 21.7. In the interim before full installation of the EOMS at the designated sites, 10 Defendants shall implement a formal process and tracking protocol to manually 11 accomplish the functions of the EOMS, subject to monthly review by the Warden 12 of each facility. 13 21.8. The EOMS chosen by Defendants shall have the following capabilities. 14 21.8.1. Ability to automate key operational workflows, tasks, and reporting 15 requirements such as: tracking prisoner movement out of cell, via passive, radio 16 frequency identification (“RFID”) cards, and mobile devices and/or fixed 17 RFID readers; logging cell checks and security checks via fixed RFID Tags; 18 store photographs and video with audio, automating prisoner activity logging, 19 and automating whether prisoner services such as meal delivery, recreation, 20 medications, supplies, laundry and bedding, have been completed or refused, 21 as well as functionality Defendants believe will help validate their actions; 22 21.8.2. Ensure that all electronic log entries as well as other electronically captured 23 data cannot be edited, deleted, or altered in any way; 24 21.8.3. Support a real-time or near real-time interface with ADCRR’s electronic 25 prisoner management system to share prisoner demographics information and 26 housing assignments; 27 21.8.4. Use portable devices that support Wi-Fi and an embedded high-resolution 28 camera capable of taking photographs and recording videos; 1 21.8.5. Use RFID tags that are high-frequency and capable of near-field 2 communication. RFID tags shall contain a unique identification number that 3 cannot be duplicated or altered, support secure mounting, be enclosed in a 4 tamper-proof, shatter-proof unit, and have the ability to identify prisoners by 5 name when scanned; 6 21.8.6. Support digital incident codes that can be customized by system 7 administrators and used by end users to collect observations of prisoners and 8 other activities; 9 21.8.7. Enable users to create a unique PIN to authenticate login privileges or login 10 via RFID fob or ID card; 11 21.8.8. Support Web browsers, such as Chrome, Firefox, or Microssoft Edge, that 12 is password protected; 13 21.8.9. Support prisoner level documentation where log entries positively identify 14 prisoners by name and housing assignment; 15 21.8.10. Generate prisoner level reports that identify prisoners by name and 16 identification number; 17 21.8.11. Support the ability to log meals, movements, recreation, refusals, 18 headcounts, medications, supply passes, security checks, and other appropriate 19 information by prisoner name, officer ID, and time/date; 20 21.8.12. Automatically visually distinguish between log entries created by RFID 21 scan versus those manually recorded without an RFID scan or “read”; 22 21.8.13. Include a real-time module that tracks system usage to display the date, 23 time, and location of completed activities; and 24 21.8.14. Support electronic signature captures. 25 21.9. To ensure accurate monitoring, the EOMS chosen by Defendants shall support 26 the following reporting capabilities: 27 21.9.1. Export data into multiple file formats, such as PDF, Excel, HTML, and XML 28 to be printed and/or saved to a local area network; 1 21.9.2. Retain data in accordance with required state record-retention laws and 2 rules; 3 21.9.3. Automatically generate and send reports via email to select recipients; and 4 21.9.4. Filter reports by date, time, housing unit, prisoner name, booking number, 5 and officer ID. 6 21.9.5. Produce the following: 7 • Prisoner Activity Report 8 • Housing Activity Report 9 • Round Compliance Report 10 • Meals Report 11 • Recreation Report 12 • Movement Report 13 • Population Report 14 • Use of Confinement Report 15 • Maintenance and Equipment Report 16 22. Access to Staff 17 22.1. Defendants shall not house any prisoner in a housing location where a prisoner 18 lacks the ability to effectively contact a staff member immediately, either via in- 19 person or via a call button/intercom system. 20 22.2. The installation of call buttons or an intercom system in every cell housing a 21 prisoner is an ideal that requires significant expenditures. At present it does not 22 appear required to be ordered. The Court strongly recommends but will not require, 23 installation of such a system. 24 23. Building Conditions 25 23.1. Within three months of this Order, all showers used by prisoners found in 26 disrepair (e.g., rusted, leaking, broken pipes) shall be repaired and, if needed, 27 28 1 resurfaced, professionally painted after appropriate preparation, and/or new shower 2 pans installed.10 3 23.2. Defendants shall maintain all showers used by prisoners in good operational 4 state. Showers shall be sanitized daily or more often if necessary and shall be free 5 of filth and mold/mildew. Showers shall be resurfaced and/or painted on an as- 6 needed basis and all new paint shall be mixed with a mildewcide additive to reduce 7 the presence and growth of mold and mildew. 8 23.3. Recreation areas used by prisoners shall be cleaned at least daily and kept free of 9 dirt, filth, rubbish, garbage, rodents, vermin, insects, or other matter detrimental to 10 health (e.g., mold/mildew). A log entry shall be made in the EOMS application for 11 each housing unit at the time a recreation area is cleaned. 12 23.4. Defendants shall, within three months of this Order, take the following actions 13 regarding cells and areas used by prisoners: 14 23.4.1. repair or replace essential equipment or structures in cells found in disrepair 15 (e.g., rusted, leaking or broken pipes, sinks and toilets); 16 23.4.2. cells found in need of painting shall, after appropriate preparation, be 17 professionally painted. New paint shall be mixed with a mildewcide additive 18 to reduce the presence and growth of mold and mildew. 19 23.5. Defendants shall, at all times after three months of this Order, ensure the 20 following regarding cells or other areas used by prisoners: 21 23.5.1. maintain all cells in a serviceable, good operational state, ensuring the cells 22 are kept free of filth, mold, mildew, rust, vermin, and insects. 23 23.5.2. professionally re-paint cells after appropriate preparation as needed. New 24 paint shall be mixed with a mildewcide additive to reduce the presence and 25 growth of mold and mildew. 26
27 10 As a matter of common decency, an Order should not be required to prompt Defendants to repair leaking pipes, repair inoperative toilets, or collect trash. However, Defendants’ 28 conduct throughout this litigation demonstrated Defendants cannot be relied upon to perform such basic tasks. 1 23.5.3. All areas used in conjunction with prisoners to include, but not limited to, 2 dayrooms, showers, recreation areas, classrooms, etc., shall be kept in a clean 3 and sanitary condition, free from any accumulation of dirt, filth, rubbish, 4 garbage, rodents, vermin or other matter detrimental to health (e.g., 5 mold/mildew). 6 23.5.4. Housing unit staff shall daily ensure the removal of trash and garbage from 7 all areas. Each unit’s housekeeping program shall include a daily general 8 sanitation inspection by a supervisor. The inspector shall make a log entry in 9 the EOMS application for each housing location inspected. 10 23.6. Access to Cleaning/Sanitation Supplies 11 23.6.1. Prisoners shall have access to effective cleaning and sanitizing supplies 12 necessary to properly clean and sanitize their own living area. Supplies shall 13 include, as consistent with operational safety, access to tools and cleaning 14 agents, e.g., cleaning detergents, rags, sponges, scrub brushes, mops, mop 15 bucket, broom, dustpan. A log entry shall be made in the EOMS application 16 for each housing location that includes the date and time the supplies were 17 provided and the date and time the supplies were collected. 18 23.7. Pest Control 19 23.7.1. Defendants shall engage a pest control contractor on a semi-monthly basis 20 to eliminate vermin, insects, and rodents by safe and effective means in all 21 common areas used by prisoners. The pest control service shall be completed 22 in all cells where the prisoner occupying the cell agrees to the service. A log 23 entry shall be made in the EOMS application indicating the location, date, time, 24 name of the company representative performing the pest control service, and 25 the service performed. 26 24. Subclass’ Members Access to Services 27 This Order contemplates most prisoners will be able to submit requests for medical 28 services and other matters via electronic tablets. Therefore, Defendants shall ensure the 1 following: 2 24.1. Within six months of this Order, prisoners’ tablets shall allow them, in a language 3 they understand, to make direct requests for services including medical/mental 4 health services, file a letter or other request required before filing a grievance, file 5 a grievance, file an appeal, access and send electronic mail (both personal and 6 professional), check their commissary account balance, obtain current program 7 schedules and curriculum, purchase commissary items, access case notices 8 regarding letters and grievances, access the prisoner handbook, access disciplinary 9 documents, access hearing documents, access appeal decisions and access current 10 classification level and progress towards the next step down. The tablet should also 11 allow access to entertainment such as books, educational materials, music and 12 movies, consistent with a prisoner’s classification and step levels. Until tablets are 13 issued with the above functionality, and thereafter for prisoners who are not 14 permitted to have electronic tablets or who do not have access to an electronic tablet 15 due to tablet malfunction, Defendants shall provide paper or other means for 16 prisoners to access documents and make requests consistent with the prisoner’s 17 custody level. 18 25. Body Scanners 19 Evidence at trial established prisoners undergo routine strip searches. The Court- 20 appointed expert recommended Defendants use full-body scanners to reduce the use of and 21 reliance on strip searches. Full-body scanners are preferable but, at this time, the Court 22 will not mandate the installation of full-body scanners at all locations housing prisoners. 23 26. Food Service and Meals 24 26.1. All prisoners shall be provided a minimum of three separately provided meals a 25 day (breakfast, lunch, dinner) consisting of two hot meals and one cold meal with 26 no more than 14 hours between dinner and breakfast. Breakfast and lunch may be 27 served together on weekends and holidays, provided one is a hot meal and 28 1 nutritional needs are met. These meals shall be of the same quality and have the 2 same nutritional and caloric content as meals served in general population.11 3 26.2. When a prisoner refuses three meals of any kind in a seven-day period or displays 4 a significant change in eating habits (e.g., accepts meals but does not consume 5 them; does not consume significant portions of a meal; refuses meals intermittently, 6 etc.,) corrections officers shall immediately notify medical staff. 7 26.3. The following log entries shall be made for prisoners: 8 26.3.1. when a meal is provided or refused, an entry that includes the type of meal 9 (regular diet, therapeutic, religious) and, if the meal was refused, a video 10 recording of the refusal; 11 26.3.2. when a therapeutic or religious diet begins and/or ends, an entry that 12 includes the type of diet and the reason for the beginning or ending of the diet 13 (which, for medical diets may be that the order from a medical provider began 14 or ended). 15 27. Out-of-Cell Activities 16 27.1. Prisoners, including any prisoners who do not qualify under one of the four 17 categories outlined above, shall be offered 14 hours or more per week of out-of- 18 cell time to include opportunities for recreation, showers, individual/group therapy 19 where eligible for such services, visitation, phone calls, or other offered activities. 20 27.1.1. If the prisoner is offered out-of-cell time, but the prisoner voluntarily 21 refuses, the time the prisoner would have been out-of-cell counts towards out- 22 of-cell time. 23 27.1.2. If out-of-cell time is scheduled but not available, not offered, or offered at 24 unreasonable times (e.g., 4:00 A.M.), that time shall not count towards out-of- 25 cell time. 26 11 The Court-appointed expert recommended Defendants have food service areas inspected 27 by a health department official and that Defendants ensure there is an emergency meal plan to cover situations where food or water is temporarily unavailable. Oddly, Defendants 28 contested these requirements. The Court will not order them at this time but will consider ordering it, if necessary. 1 27.1.3. When out-of-cell time must be canceled, reasonable efforts shall be made to 2 re-offer it. 3 27.1.4. A log entry shall be made in the EOMS application that includes the type of 4 activity, the time the activity began and ended, or, if the prisoner refuses, a 5 video recording of the refusal. 6 27.1.5. Defendants must continue to perform and monitor their obligations under 7 this Order even after prisoners are offered more than fourteen hours of out-of- 8 cell time in one week. Defendants shall continue to document activities of 9 those locations housing prisoners on the date of this Order until such time as 10 this Order is terminated. 11 27.2. All prisoners shall be provided regular access to showers, at a minimum of three 12 times per week with no more than three days between showers. 13 27.2.1. For each prisoner who takes a shower or refuses to take a shower, a log entry 14 shall be made in the EOMS application that includes a video recording of the 15 refusal. 16 27.2.2. When a prisoner refuses to shower on a continual basis or displays a 17 significant change in hygiene habits, medical staff shall be immediately 18 notified. 19 27.3. Within one month after issuance of this Order, all prisoners shall be provided the 20 following: 21 27.3.1. Regular access to outdoor recreation areas at least consistent with the 22 prisoner’s classification and, for those in Maximum Custody, their step level 23 as described in Department Order 812 as of November 21, 2022; at a minimum 24 each prisoner shall have no less than 10 hours per week in blocks of no longer 25 than 3.5 hours in enclosures of at least 100 square feet and, for all those not in 26 Maximum Custody Step 1, some ability to socialize with others. 27 27.3.2. Prisoners will be allowed to use the restroom during recreation periods as 28 needed, without forfeiting the remainder of the recreation period. 1 27.3.3. Recreation areas shall have constant supervision, in-person, by qualified 2 staff members and have available shade and clean drinking water. 3 27.3.4. A log entry shall be made in the EOMS application for each housing unit 4 when a portable beverage cooler of clean drinking water for a recreation area 5 is provided. 6 27.3.5. For each prisoner who refuses to recreate, a log entry shall be made in the 7 EOMS application that includes a video recording of the refusal. 8 27.3.6. Prisoners may voluntarily request to end their recreation period at any time, 9 and will be returned to their cell within 15 minutes of making the request. Any 10 remaining time for that recreation period is forfeited. 11 28. Personal Property 12 The expert recommended Defendants take steps to ensure the proper distribution 13 and laundering of clothing, the proper distribution of bedding supplies, and the proper 14 distribution of personal care items such as soap and toilet paper. Defendants object to this 15 recommendation and at this time the Court will not order Defendants to distribute and track 16 these items but the Court may reconsider if necessary. 17 29. Classification 18 29.1. Defendants shall assign a full-time qualified staff member (“Classification 19 Monitor”), with no other collateral duties, to each individual unit housing prisoners 20 to ensure all classification reviews, step progression (up or down) and movements 21 to an appropriate new housing location are processed and completed within ten 22 days. The reasons and evidence considered shall be documented in the prisoner’s 23 classification record. 24 29.2. Defendants are required to provide prisoners in maximum custody, detention, or 25 close management a written or electronic copy of their individualized case plan, in 26 a language the prisoner understands that describes the actions needed, as well as 27 associated timeframes, to progress in their steps in maximum custody and generally 28 to gain more privileges and lower classification levels (less restrictive housing). 1 29.2.1. Defendants are required, at intervals not to exceed one month, to conduct 2 and document an evaluation of each of the prisoner’s progress under an 3 individualized plan. The evaluation should also consider the state of the 4 prisoner’s mental health; address the extent to which the prisoner’s behavior, 5 measured against the plan, reasonably justifies the need to maintain, increase, 6 or decrease the level of controls and restrictions in place at the time of 7 evaluation; and recommend full classification review when appropriate. The 8 documentation shall be sufficiently detailed to show the basis for any decisions 9 made in the evaluation (including increasing, decreasing, or maintaining 10 privileges). 11 29.2.2. Defendants are required, at intervals not to exceed six months, to conduct a 12 full classification review including a meeting with the prisoner and the 13 classification committee, except in exceptional circumstances justified by 14 legitimate safety concerns, the prisoner need not attend. At that meeting it shall 15 be determined whether the prisoner’s progress toward compliance with the 16 individual case plan or other circumstances warrant a reduction of restrictions, 17 increased programming, or a move to a lower level of custody. If a prisoner 18 has met the terms of the individual case plan, there should be a presumption in 19 favor of releasing the prisoner from maximum custody or close management. 20 The documentation shall be sufficiently detailed to show the basis for any 21 decisions made in the classification review (including increasing, decreasing, 22 or maintaining privileges or classification). A decision to retain a prisoner in 23 maximum custody or close management following consideration by the 24 classification review committee should be reviewed by the facility warden or 25 deputy warden, and approved, rejected, or modified as appropriate. If the 26 facility warden or deputy warden rejects or modifies the decision of the 27 classification committee, the basis for the rejection or modification of the 28 decision shall be documented with sufficient detail to allow review. When the 1 warden or deputy warden disagrees with the classification committee’s 2 recommendation, the Regional Operations Director shall review the matter and 3 make a final determination. The basis for the Regional Operations Director’s 4 decision shall be documented with sufficient detail to allow review. Any 5 decision by the warden, deputy warden, or Regional Operations Director must 6 be reasonable and consistent with legitimate penological interests. 7 29.3. Defendants are required to ensure enough beds are available for the number of 8 prisoners placed in each classification level. When a higher or lower classification 9 level is achieved, the Classification Monitor shall within ten days re-house the 10 prisoner into a location associated with their new classification level and step as 11 well as afford the appropriate privileges associated with the new classification level 12 and step. 13 30. Detention Unit Supervision 14 Defendants shall assign a full-time qualified staff member, with overall unit 15 authority and no other duties, to each detention unit to ensure all services, assessments, 16 programs and activities in the detention unit are completed as required and shall ensure 17 those prisoners who are eligible to leave the unit are re-housed within ten days. 18 31. Disciplinary Process 19 Evidence at trial established prisoners that are placed in detention units, often 20 remain there indefinitely, and the disciplinary system was “irrational[] and unfair[].” (Doc. 21 4335 at 142). The Court’s expert made many reasonable recommendations for how 22 Defendants should restructure their disciplinary processes. The Court will not require 23 Defendants implement them at this time but may reconsider at a later date. The other 24 limitations Defendants are ordered to comply with are intended to ameliorate the harm 25 caused by Defendants’ irrational and unconstitutional disciplinary policies and procedures.
26 27 28 1 Findings Required by 18 U.S.C. § 3626(a)(1)(A) 2 32. The Court finds that this Injunction is narrowly drawn, extends no further than 3 necessary to correct the violation of the constitutional rights of the Plaintiff class and 4 subclass, and is the least intrusive means necessary to correct the violation of the 5 constitutional rights. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Jensen v. Thornell (Jensen v. Thornell) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.