Key Points: 

• Plaintiffs in prison health care class action propose broad authority for receiver

• Department proposes three-year timeline and legislative and executive checks

• Timeline for receivership start date uncertain amid department appeal

Two plans for a takeover of the Arizona Department of Corrections, Rehabilitation and Reentry health care system are now before a federal judge, but the state’s appeal muddies the timeline for implementation. 

In February, following nearly 15 years of litigation, a federal judge found the department had continually failed to fix chronic constitutional violations and placed the state’s prison health care system under a receivership, clearing the way for a third party to overhaul operations. 

Plaintiffs in the long-running lawsuit and the Arizona Department of Corrections, Rehabilitation and Reentry have since submitted their respective visions for a receiver’s power, each detailing proposed authority, access and role in the state budgeting process.

The two expectedly split on the scope of the role and how tight a leash a receiver must keep on the department. But whether a judge enacts either plan or some combination of the two could be on hold as the state pursues a second opinion at the 9th Circuit Court of Appeals. 

“It’s people dying and people suffering harm every day because of their failings,” Sophie Hart, attorney for the Prison Law Office said. “We think this remedy needs to happen now.” 

On Feb. 19, Judge Roslyn Silver granted a motion for a receiver. 

Receivership is rare, Silver acknowledged, but she wrote, “only the imposition of the extraordinary can bring an end to this litigation and why it was brought. An end to unconstitutional preventable suicides. An end to unconstitutional preventable deaths. An end to unconstitutional failures to treat those in severe pain.” 

Silver ordered the parties to outline their preferred duties and powers of the prospective receiver within 30 days. 

Counsel for the plaintiffs claim an “obvious and profound leadership gap,” and argue the receiver must be granted powers over administration, control, management, operation and financing on par with that of the department’s director. 

Hiring and the implementation of systemic staffing changes must fall within that purview, too, as the number of medical personnel remains “woefully insufficient.” And the motion notes a need to extend to all employees, including correctional staff, who assist in delivering health care services. 

On the health care professional front, though, Hart points out the final staffing plan required the department to hire 600 additional health care professionals, but as it stands now, they have only netted three full time employees.

Plaintiffs’ attorneys make the case for full control over ADCRR policies, procedures, protocols, systems and practices for health care delivery and must be given authority to oversee the department’s contract with its health care vendor, NaphCare. 

This could also include the receiver’s authority to petition to waive a state law that requires the department to use a private contractor for prison health care services.

And as for funding, the plaintiffs argue the receiver should be able to take some of the reins from the director in the budgeting process, with a process to challenge a lack of funding from the state budget in a court hearing. 

“I do think the receiver should be encouraged to work with the Legislature, in part because the Legislature needs to understand that this is something that they need to fund,” Hart said. “But there needs to be a backstop so that if things fail, if negotiations fail, the consequences aren’t – just as they always are – borne by the people in prison.” 

And as far as ongoing monitoring, plaintiffs request “unrestricted access” to department facilities, staff, incarcerated people and documents and full cooperation. 

“Limiting the Receiver’s access or requiring the Receiver to seek permission each time they need to access a facility or document would unduly delay and hinder progress,” Hart wrote. 

As the department sees it, the receiver should take on a slightly more limited role. 

To start, Mary O’Grady, attorney for the department, makes it clear that by filing the motion, the state is not conceding to the receivership and does not waive any prior objections to the appointment of a receiver. 

But, if a receivership holds up at the appellate courts, the department seeks a three-year timeline, limited scope, compliance with existing state laws and a line of stopgaps allowing for some continued control. 

“Because the appointment of a Receiver is extraordinary relief that replaces State authority over a State function with a federally appointed entity, the application of State law and adoption of clear processes to end the Receivership and return authority to State government are critical to a narrowly-drawn Receivership,” O’Grady wrote. 

For one, the department proposes terminating the receivership after three years, unless an evidentiary hearing shows a continued need. And the department asks the receiver to serve a three-year term, with the option to renew for two more years. 

“Consistent with the Court’s own finding that compliance within a reasonable timeframe is achievable, a three-year period should be realistic for the Receiver,” O’Grady wrote. “Indeed, the Receivership motion was granted less than three years after the Injunction was entered.”

As for funding, the receiver would have a seat at the table in state budget negotiations and be required to undergo an annual audit and submit reports every four months. 

Counsel also urged the receiver to comply with state statute in its duties, but, in the case there ultimately is a petition to waive any state law, the department requests a 60-day notice to the governor, the Senate president and the speaker of the House before taking any action in court. 

“This gives state officials an opportunity to consider changes to address the Receiver’s concern through the legislative or rule-making process,” O’Grady wrote. 

She also asked that the Legislature be permitted to defend state law in court. 

In assessing the receiver’s level of access, the department claims a need for compliance with security policies and procedures and some reasonable notice ahead of visits, though it acknowledged the receiver may also arrive unannounced. 

The department would allow the receiver to interview prisoners and health care personnel, but required any request to interview staff to be run by the director. 

And the department asked to cut “duplicative monitoring,” proposing to “relieve” court appointed monitors and to eliminate monitoring by plaintiffs. 

Hart said the hope is to eventually consolidate monitoring into a single entity, but maintained that the plaintiffs need to continue reviewing for compliance. 

“Once a receiver is appointed, at some point, defendants are going to say, everything is fine, and now the receivership should be terminated,” Hart said. “And we need the ability to assess that argument and see if we agree or not, and represent our clients in court on those positions. We can’t do that without access. We certainly can’t do that just by relying on someone else’s reports.” 

Though the two proposals now sit with Silver, the department is continuing on its path to “aggressively pursue an appeal,” with a notice of appeal filed March 19. 

The Legislature is keeping an eye on the case, too. 

In a statement, House Speaker Steve Montenegro said, “We continue to monitor the proceedings and expect the state to prevail on appeal, given the massive investment taxpayers have made in our corrections system over the last several years.” 

As for tailoring the receivership, Montenegro said, “ We also expect the courts to respect their constitutional role by interpreting the law, not appointing themselves lawmakers or appropriators.”

Lilliana Soto, spokesperson for Gov. Katie Hobbs, noted the executive budget proposal included $100 million to meet staffing orders and health care requirements set out in the injunctions but was not intended to cover the costs of receivership. 

That $100 million wouldn’t even scratch the surface of what a receivership would cost,” Soto said in a statement: 

Soto said a receivership would be both “costly” and “unnecessary” for Arizona— noting the corrections budget tripled in California’s prison receivership. 

“Real, lasting change takes time, but we are on the right path and Governor Hobbs is committed to continued progress,” Soto said.