(PC) Coleman v. Newsom ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RALPH COLEMAN, et al., No. 2:90-cv-0520 KJM DB P 12 Plaintiffs, 13 v. ORDER 14 GAVIN NEWSOM, et al., 15 Defendants. 16 17 18 As set by court order, the court held a focused evidentiary hearing on October 15 19 and 16, 2019, to address unresolved issues the court identified after reviewing Dr. Golding’s 20 whistleblower report and the court’s neutral expert’s investigation into Dr. Golding’s allegations. 21 See ECF Nos. 6242, 6288. The court heard closing arguments from the parties on October 22, 22 2019. In addition, as authorized by the court, Dr. Golding filed a written closing argument. ECF 23 No. 6362. On October 23, 2019, the court provided an oral pronouncement of its findings and 24 conclusions in open court. Reporter’s Transcript of Proceedings (10/23/19 RT), ECF No. 6380. 25 Those findings and conclusions, with record support, are memorialized in this order. 26 27 28 1 I. INTRODUCTION 2 In 1995, the court found “the California Department of Corrections . . . 3 significantly and chronically understaffed in the area of mental health care services. . . . [It] does 4 not have sufficient staff to treat large numbers of mentally ill inmates in its custody.” Coleman v. 5 Wilson, 912 F.Supp. 1282, 1307 (E.D. Cal. 1995). In 2011, the United States Supreme Court 6 observed that the record before that Court supported the conclusion “that the prison system 7 remained chronically understaffed through trial [before a three-judge court] in 2008.” Brown v. 8 Plata, 563 U.S. 493, 528 (2011).1 In October 2017, after more than two decades of remedial 9 effort, this court issued an order requiring defendants to come into complete compliance with the 10 staffing ratios in their 2009 Staffing Plan, ECF No. 3693, and the maximum ten percent staffing 11 vacancy rate required by the court’s June 13, 2002 order, ECF No. 1383, with compliance to be 12 achieved by October 2018. ECF No. 5711 at 30.2 13 In its October 2017 order, the court included a lengthy discussion of defendants’ 14 request, made in a March 30, 2017 filing, see ECF No. 5591 at 4, for the court “to revisit the 15 existing staffing ratios for psychiatrists.” Id. at 12-20.3 The court made clear defendants faced a 16 1 Brown v. Plata is a decision by the United States Supreme court “on appeal . . . from a three-judge District Court order . . . applicable to both” this action and to Plata v. Brown, Case 17 No. C01-1351 JST (N.D.Cal.). Brown, 563 U.S. at 499-500. 18 2 With the exception of citations to page numbers in Reporter’s Transcripts of Proceedings 19 and the deposition transcript of Dr. Kevin Kuich, references to page numbers in documents filed in the court’s Electronic Case Filing (ECF) system are to the page number assigned by the ECF 20 system and located in the upper right hand corner of the page. 21 3 Defendants’ March 30, 2017 filing, ECF No. 5591, was in response to the Special Master’s Report on the Status of Mental Health Staffing and the Implementation of Defendants’ 22 Staffing Plan (hereafter Special Master’s Staffing Report). As noted, the court discussed it 23 extensively in its October 10, 2017 order, ECF No. 5711. It is one of the filings that has now, belatedly, been corrected by defendants as a result of the proceedings occasioned by the Golding 24 Report. See ECF No. 6302. Although the Golding Report was issued in October 2018, and the Neutral Expert Report on issues raised by the Golding Report, ECF No. 6147, was issued in April 25 2019, defendants did not agree to correct this pleading until a meet and confer process required by 26 court order and conducted by the parties in June and July 2019, see ECF No. 6187 at 2; the joint status report that followed that meet and confer process included defendants’ agreement to correct 27 the pleading, see ECF No. 6302 at 2 (citing ECF No. 6226 at 30). Moreover, although the court does not in this order make specific findings about the adequacy of defendants’ corrections, it 28 1 “heavy burden” in attempting to persuade the court those ratios should be revisited. Id. at 14, 18- 2 19. The court noted defendants’ request could “only be construed as a request to increase the 3 existing caseload of prison psychiatrists” and that there was “scant evidence in the record to 4 suggest this change would advance remediation of the Eighth Amendment violation in this case; 5 rather there is strong evidence that such a change would slow progress toward the end of federal 6 court oversight.” Id. at 19. Nonetheless, the court granted defendants limited leave to explore its 7 request, deciding “not to preclude defendants from raising with the Special Master the issue of 8 whether full implementation of the PMA [psychiatric medical assistant] program supports a 9 change in the staffing ratios for psychiatrists.” Id. The court limited its permission because the 10 record did not support a more extensive revisiting of the 2009 Staffing Plan and the time for 11 defendants’ compliance with the Plan was past due. As of this writing, the record still does not 12 support a more extensive review, and the time for compliance is even more seriously past due. 13 For the year following the court’s October 2017 order, the parties, supervised by 14 the Special Master, engaged in extensive negotiations over issues related to staffing compliance. 15 Ultimately, defendants presented to plaintiffs and the Special Master a staffing proposal that 16 would have cut by approximately twenty percent the total number of line psychiatry staff 17 positions allocated throughout the prison system. See Reporter’s Transcript of Proceedings, 18 October 15, 2019 (10/15/19 RT), ECF No. 6377, at 52:9-18.4 Plaintiffs were poised to accept the 19 proposal. Before they did, however, on October 3, 2018, Dr. Michael Golding, Chief Psychiatrist 20 does note that defendants have replaced a chart attached as Exhibit 2 to the Tebrock Declaration, 21 ECF No. 5591-2, and have corrected two lines of ECF No. 5591. See ECF No. 6302 at 2-3. 22 They have not, however, revised the statements in the Tebrock Declaration that describe Exhibit 2, see ECF No. 5591-2 ¶ 8, nor have they revisited the more general conclusion in the Tebrock 23 Declaration that relied on the now-corrected chart, asserted in their response to the Special Master’s Staffing Report, that “CDCR clinicians, and particularly its psychiatrists, provide quality 24 treatment at very high compliance rates despite the current staffing vacancies.” ECF No. 5591 at 25 14 (citing Tebrock Decl. ¶ 8). The court is still reviewing the adequacy of defendants’ corrections, generally. 26 4 At 52:10, the question as transcribed refers to a “2008 staffing proposal.” The reference 27 is actually to a 2018 staffing proposal. See 10/15/19 RT at 52:15-17. 28 1 for the California Department of Corrections and Rehabilitation (CDCR), sent a whistleblower 2 report to the Plata5 Receiver. Id. at 54:23-55:6. The parties brought the report to this court’s 3 attention on October 5, 2018, and it is that report that has led to the proceedings culminating in 4 this order. As the findings in this order make clear, and contrary to defendants’ initial position -- 5 maintained through the evidentiary hearing -- that no independent investigation of Dr. Golding’s 6 allegations was necessary, those allegations in significant part justified the independent 7 investigation and factfinding the court has undertaken. 8 At this critical juncture, several key legal principles, articulated by the previously- 9 assigned judge in this action, bear repeating: 10 ‘Whatever rights one may lose at the prison gates, cf. Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 11 629 (1977) (prisoners have no right to unionize), . . . Eighth amendment protections are not forfeited by one’s prior acts. 12 Mechanical deference to the findings of state prison officials in the context of the eighth amendment would reduce that provision to a 13 nullity in precisely the context where it is most necessary. The ultimate duty of the federal court to order that conditions of state 14 confinement be altered where necessary to eliminate cruel and unusual punishments is well established.’ Spain v. Procunier, 600 15 F.2d [189] at 193–94 [(9th Cir. 1979)] (emphasis added). 16 Coleman v. Brown, 28 F.Supp.3d 1068, 1077-78 (E.D.Cal. 2014) (emphasis included in 2014 17 order). The same judge said not so very long ago, in his 2013 order denying defendants’ motion 18 to terminate this action, “[t]he Eighth Amendment violation in this action is defendants’ ‘severe 19 and unlawful mistreatment’ of prisoners with ‘serious mental disorders,’ through ‘grossly 20 inadequate provision of ... mental health care.’” Coleman v. Brown, 938 F.Supp.2d 955, 969 21 (E.D.Cal. 2013) (quoting Brown v. Plata, 563 U.S. at 500, 502)). Just two years before that 22 denial of termination, in its 2011 decision, the United States Supreme Court had observed that 23 “[f]or years the ... mental health care provided by California’s prisons has fallen short of 24 minimum constitutional requirements and has failed to meet prisoners’ basic health needs. 25 Needless suffering and death have been the well-documented result.” Brown v. Plata, 563 U.S. at 26 501. 27 5 Plata v. Newsom, Case No. C01-1351-JST (N.D.Cal.). 28 1 As the prior presiding judge also noted, 2 once an Eighth Amendment violation is found and injunctive relief ordered, the focus shifts to remediation of the serious deprivations 3 that formed the objective component of the identified Eighth Amendment violation. See Coleman v. Brown, 938 F.Supp.2d at 988. 4 Remediation can be accomplished by compliance with targeted orders for relief or by establishing that the ‘violation has been 5 remedied in another way.’ Id. 6 Coleman v. Brown, 28 F.Supp.3d at 1077. Under no circumstances may remediation be 7 accomplished by end runs and hiding the ball to create a false picture for the court, as has 8 happened here. 9 Given the constitutional deprivations underlying this case, and the court’s 10 monitoring by way of a Special Master, defendants’ expenditure of so much time and effort to 11 create records designed to advance litigation as the primary way to achieve a complete remedy or 12 termination by other means is confounding. This court’s predecessor carefully constructed a 13 process supervised by a Special Master that was intended to moderate court intrusion into 14 defendants’ own remedial efforts. Such a process is arguably more respectful of defendants’ 15 knowledge of their operations and their management prerogatives than a process whereby 16 oversight is transferred to a receivership; it also is more hopeful that defendants can best 17 determine how to meet their constitutional obligations to the seriously mentally ill inmates in 18 their custody. At the same time, given the authority that here remains vested in defendants 19 themselves, the importance of defendants’ transparent and accurate reporting is paramount: the 20 court and the Special Master must be able to rely fully on defendants’ representations. As 21 explained in this order, the court has concluded the reliability of those representations at multiple 22 levels of the Coleman case structure is in serious doubt. If the approach of monitoring by a 23 Special Master has contributed to play in the joints allowing for those misrepresentations, the 24 court may need to revisit that structure in future proceedings. For now, that is a question for 25 another day. 26 Before detailing its findings and conclusions, the court sets forth in greater detail 27 the background leading up to the evidentiary proceedings, which are now concluded. 28 1 II. BACKGROUND 2 A. Matters Leading Up to Evidentiary Hearing 3 As noted, on October 10, 2017, this court issued its order requiring defendants, 4 within one year, to come into complete compliance with the staffing ratios in their 2009 Staffing 5 Plan, ECF No. 3693, and also with the maximum ten percent staffing vacancy rate required by the 6 court’s June 13, 2002 order, ECF No. 1383. ECF No. 5711 at 30. The court set a further status 7 conference for October 11, 2018 and directed the parties to file a joint status report thirty days 8 prior to the status conference; the status report was to address, as necessary, issues pertaining to 9 enforcement of the order and the durability of the staffing remedy. Id. at 31. The court later 10 continued the hearing to October 15, 2018, and expanded it to include an evidentiary hearing on 11 the use of telepsychiatry to give defendants an opportunity to “prove that the changes they have 12 effected, moving from limited use of telepsychiatry as a supplement to on-site psychiatry in the 13 face of short-term staffing shortages, to the further expansion they appear to be implementing is 14 consistent with the requirements of the Eighth Amendment.” ECF No. 5928 at 12; see also ECF 15 No. 5933. 16 On October 5, 2018, ten days before the scheduled hearing, the court received 17 requests from both parties; plaintiffs requested a status conference, ECF No. 5936, and 18 defendants requested a stay of proceedings, ECF No. 5938. The requests were based on the 19 whistleblower report from Dr. Golding (hereafter Golding Report). Following a special status 20 conference on October 10, 2018, the court vacated the original status conference set to consider 21 enforcement of the October 10, 2017 order and the evidentiary hearing on the use of 22 telepsychiatry. ECF No. 5949 at 5; ECF No. 5980. After hearing from the parties and Dr. 23 Golding’s counsel both orally and in writing, ECF Nos. 5967, 5969, 5976-5978, on October 25, 24 2018, the court ordered the Golding Report filed on the public docket in redacted form.6 ECF 25 26 6 The redactions approved by the court were relatively minor, and made to protect “(1) current and former employees’ names; (2) current and former employees’ employment titles, 27 but only where an employment title is expressly linked to a name or a specific prison so as to disclose a person’s identity; and (3) any other information that serves to identify an individual 28 1 Nos. 5986-5988. A complete unredacted copy of the Golding Report is filed under seal. ECF No 2 5990. 3 B. Appointment of Neutral Expert 4 The court held a series of hearings, ECF Nos. 5964, 5980, 5995, issued an order to 5 show cause why the court could not appoint its own neutral expert, ECF No. 6002, and 6 considered the parties’ responses, ECF Nos. 6009-6012, 6015. On December 14, 2018, the court 7 appointed Charles J. Stevens, Esq. of Gibson Dunn & Crutcher LLP as the court’s neutral expert 8 under Federal Rule of Evidence 706, “to assist the court in investigating allegations raised in [the 9 verified Golding Report) to determine whether defendants have committed any fraud on the court 10 or the Special Master, or have intentionally provided false or misleading information to the court 11 or the Special Master.” ECF No. 6033 at 1-2. The court filed an amended appointment order on 12 January 8, 2019. ECF No. 6064. The amended order modified paragraphs A(2) and B(4) of the 13 original appointment order, as requested by the neutral expert, and modified the first paragraph of 14 that order to reflect events since the December 14, 2018 order was filed. Id. at 1 n.1. 15 The court tasked the neutral expert with conducting an independent investigation 16 to identify facts, if any, that raised a question whether defendants committed fraud on the court or 17 intentionally misled the court or Special Master regarding seven issues the court specifically 18 identified in its appointment order, as follows: 19 a. Lengthening the intervals between psychiatric appointments beyond court-mandated timelines for inmate-patients at the 20 Correctional Clinical Case Management System (CCCMS) and Enhanced Outpatient Program (EOP) levels of care who are 21 transferred to new institutions by resetting the clock for such appointments from the time of transfer rather than from the last 22 completed appointment, rescheduling such appointments at the maximum time allowed in the Program Guide, and reporting 23 compliance with Program Guide requirements using the reset timelines. See Golding Report, ECF No. 5988-1 at 1, 14-23. 24 b. Lengthening the interval between psychiatrist appointments for 25 EOP inmate-patients and reporting compliance based on the extended intervals. See id. at 2, 23-26. 26 27 other than Dr. Golding, including government telephone numbers and email addresses.” ECF No. 5986 at 9. 28 1 c. Combining CCCMS and EOP appointment compliance numbers into one reporting category. See id. at 26-27. 2 d. Inflating compliance numbers by counting every encounter 3 between a psychiatrist and an inmate-patient as an appointment for purposes of measuring Program Guide timeline compliance, without 4 regard to whether the encounter was a psychiatry appointment or, e.g., a wellness check or a cell-front attempt to communicate with an 5 inmate patient. See id. at 5-6, 54-57. 6 e. The manner of reporting of scheduled appointments and missed appointments. See id. at 7-8, 35-47, 62-63. 7 f. Failing to report that psychiatric supervisors were also performing 8 some or all the functions of staff psychiatrists. See id. at 5, 56-57. 9 g. The way in which medication non-compliance is measured. See id. at 8, 58-62. 10 11 Id. at 2-3. The court did not delegate any ultimate fact-finding authority to the neutral expert, but 12 reserved that critical role to itself. See ECF No. 6187 at 2. 13 C. The Neutral Expert Report 14 The neutral expert conducted a four-month investigation, and on April 22, 2019, 15 submitted a report to the court. See ECF No. 6135 at 1. Without objection, on May 3, 2019, the 16 court filed the unredacted Neutral Expert Report on the public docket. ECF Nos. 6146, 6147. 17 The Neutral Expert Report points to substantial indications of defendants’ 18 presenting misleading information to the court and/or the Special Master, including: 19 1. Defendants’ making the December 2016 business rule change to redefine 20 “monthly” to lengthen the intervals between Enhanced Outpatient (EOP) appointments from 30 days to up to 45 days. While in effect, this business 21 rule generated misleading data about defendants’ compliance with Program 22 Guide requirements for routine EOP evaluations. ECF No. 6147 at 42, 48. 23 2. Defendants’ reporting of “Timely Psychiatry Contacts,” overstating compliance with Program Guide timeline requirements. Id. at 67. 24 Specifically, California Department of Corrections and Rehabilitation (CDCR) data presented to the court and Special Master was inconsistent 25 with Program Guide requirements and made defendants’ reports in this 26 area appear more compliant with Program Guide timeline requirements than defendants actually were. Id. 27 28 1 3. Defendants’ reporting of psychiatric evaluations, erroneously skewed toward confidential evaluations. Id. at 68. “EHRS [Electronic Health 2 Records System] data on compliance with Program Guide timelines for 3 compliance with psychiatric evaluations is potentially misleading because it includes non-confidential encounters. . . .” Id. 4 4. Between 2016 and October 2018, defendants’ use of an incorrect and 5 potentially misleading definition of the Appointments Seen as Scheduled performance indicator, resulting in data being provided to the court in June 6 2018 and to the Special Master as part of the Continuous Quality 7 Improvement (CQI) evaluations in a “misleading manner.” Id. at 75-76. 8 5. Defendants’ submitting misleading data on “Timely Psychiatric Contacts” in support of their 2018 Staffing Proposal in that the data did not accurately 9 reflect the extent to which appointments were seen by supervisors rather than line psychiatrists. Id. at 82. 10 11 6. Defendants’ submitting misleading data on the timeliness of mental health referrals, “because for medication noncompliant patients it only counted 12 those patients for whom a psychiatrist ordered a medication noncompliance counseling appointment as a matter of discretion,” not all patients who 13 require medication noncompliance appointments. Id. at 84. As a result, the performance indicator overstated compliance. Id. at 91. 14 15 7. Due to a bug in software, defendants counting cancelled noncompliance appointments as completed; however, “this inaccurate data was less 16 favorable to CDCR than the corrected data.” Id. 17 The court provided the parties an opportunity to file substantive responses to the 18 Neutral Expert Report and then set the matter for a special status conference on June 10, 2019 to 19 discuss issues raised in the briefing. ECF No. 6135 at 2. 20 D. Review of Materials Defendants Claimed as Privileged 21 During the course of the neutral expert’s investigation, defendants filed a motion 22 for protective order, seeking to avoid producing to the neutral expert documents he requested but 23 for which defendants asserted claims of attorney-client privilege and/or work product protection. 24 ECF No. 6086. The court denied the motion for protective order, specifically noting the court had 25 already provided those claims would not be waived by disclosure of “potentially privileged 26 material . . . to the court’s neutral expert during the investigation and then to the court subject to 27 the claims of privilege.” ECF No. 6096 at 6. Despite the court’s order, defendants still did not 28 produce the documents to the neutral expert. See ECF No. 6147 at 14. The neutral expert 1 declined to litigate the issues, concluding he “could make the findings requested by the Court 2 without” doing so. Id. His findings were, therefore, “subject to the qualification that [he] did not 3 review information claimed by Defendants to be protected by attorney-client or work product 4 privileges.” Id. 5 At the June 10, 2019 status conference, the court signaled it would require 6 defendants to produce the privileged documents to the court for in camera review, and the court 7 confirmed its tentative ruling by minute order the same day. ECF No. 6180. On June 14, 2019, 8 defendants filed both a motion for reconsideration by this court, ECF No. 6188, and an 9 emergency petition for writ of mandamus in the United States Court of Appeals for the Ninth 10 Circuit. See Newsom v. USDC-SAC, CAD # 19-71493 (9th Cir. filed Jun. 14, 2019). On June 18, 11 2019, this court denied the request for reconsideration, ECF No. 6200, and the appellate court 12 denied the mandamus request the next day. ECF No. 6202. Thereafter, defendants produced the 13 documents, which the court itself reviewed in camera; during its review, the court discussed 14 certain documents in camera on a few occasions with defendants. See, e.g., ECF Nos. 6270, 15 6323.7 16 As the procedural history reflects, defendants have resisted at every turn any 17 reliance by the court on any portion of any document for which they have asserted a claim of 18 privilege. The court’s general impression from its review of these documents is that defendants 19 have overreached in a number of their privilege claims, although some claims of privilege would 20 be sustained if not waived by reason of defense positions taken previously in these proceedings. 21 Nonetheless, the court has determined that to venture further into the thicket of these privilege 22 claims would waste valuable court time and resources and distract from the important, indeed 23 imperative, tasks that remain to achieve delivery of constitutionally adequate mental health care 24 to the plaintiff class. The court therefore has not prolonged these proceedings by issuing further 25 26 7 The court is maintaining as lodged documents those documents it reviewed in camera and has made a record of all in camera proceedings, which is being maintained under seal until 27 further order of court. 28 1 orders defendants are likely to appeal. Ultimately on the merits, after careful consideration, the 2 court has determined it need not rely on any of the privileged documents.8 3 For purposes of these proceedings, it is enough to say that nothing in the privileged 4 documents reviewed by the court supports a different conclusion than reached below. That is to 5 say, nothing before the court indicates, directly or by way of inference, that anyone involved in 6 presenting misleading information to the court committed intentional fraud. Rather, the picture 7 that emerges from the documents reviewed in camera is consistent with the picture that emerges 8 from the public record created over the course of the proceedings prompted by the Golding 9 Report. It is this public record on which the court relies in making its findings and conclusions. 10 III. EVIDENTIARY HEARING 11 A. Orders Narrowing Issues for Hearing 12 In its June 14, 2019 order following the June 10, 2019 status conference, the court 13 found that in five of the seven areas referred to the neutral expert for investigation, he had 14 identified evidence that, “if confirmed through further proceedings and accepted by the court, 15 could establish that misleading data has been presented to the court and/or the Special Master.” 16 ECF No. 6187 at 2. These areas included Issues B, D, E, F and G as described in the court’s 17 appointment orders. Id. The court set an evidentiary hearing to probe those five issues, “to take 18 evidence, as necessary, to determine (a) whether misleading data was presented to the court 19 and/or the Special Master; (b) if misleading data was presented, how and why that happened; and 20 (c) what action is required to correct the record and avoid future submission of misleading data.” 21 Id. The court also directed the parties to meet and confer in an effort to determine whether they 22 could “stipulate to one or more of the underlying facts suggested by the results of the neutral 23 expert’s investigation.” Id. 24 On August 8, 2019, the court held a telephonic prehearing conference. ECF No. 25 6236. The court then filed an order on August 14, 2019, confirming and clarifying several 26 8 In open court on October 23, 2019, the court ordered defendants to file the non- 27 privileged portion of the document identified as CDCR-PRIV 0000408-412. See 10/23/19 RT at 443:18-23. Defendants have complied with that order. ECF No. 6370. 28 1 matters covered at that conference. ECF No. 6242. In particular, the court found the parties had 2 stipulated to several key facts suggested by the Neutral Expert Report and defendants had 3 admitted that misleading information was provided to the court. See id. at 5-11; see also 4 10/23/19 RT at 444:67. As a result, the court narrowed the scope of the evidentiary hearing, 5 identifying the issues remaining for hearing as follows: 6 • Why neither Dr. Leidner nor Dr. Ceballos consulted with Dr. Golding in connection with the decision to change the definition of “monthly” in the relevant 7 business rule, and why no one from CDCR informed the Special Master or any 8 member of his team about this change; 9 • How the Appointments Seen as Scheduled indicator was developed incorrectly and in the absence of consultation with Dr. Golding or other quality 10 control measures, and what steps defendants plan to take to ensure indicators and definitions are developed with appropriate consultation and quality control in the 11 future; and 12 • Why defendants did not disclose in their 2018 Staffing Proposal whether, 13 and to what extent, the reporting of data related to average frequency of patient contacts did not disclose the use of supervisory psychiatrists to complete caseload 14 contacts with patients; and to what extent defendants knowingly relied on active participation of supervisory psychiatrists in performing the duties of line 15 psychiatrists both in defendants’ 2018 Staffing Proposal and in supporting their 16 representation that, if adopted, the 2018 Staffing Proposal would bring defendants into compliance with the October 2017 staffing order.9 17 18 ECF No. 6242 at 5, 9-10; see also ECF No. 6288 at 2. 19 B. Evidentiary Hearing Schedule 20 The court convened the evidentiary hearing commencing on October 15, 2019. 21 ECF No. 6345. The court heard testimony from eight witnesses over two days, asking its 22 questions first and then allowing the parties to ask questions; the court admitted several exhibits 23 into evidence as moved by the parties. ECF Nos. 6345, 6350. In addition, the court received 24 deposition testimony from Dr. Kevin Kuich, a psychiatrist, in lieu of his live testimony. See 25 26 9 The court accepted several other factual stipulations of the parties, drawn from evidence reported by the neutral expert, and referred issues related to those factual matters to the Special 27 Master. See ECF No. 6242, passim. 28 1 Annotated Deposition Transcript of Kevin Kuich, dated 9/19/2019 (Kuich Dep.), ECF No. 6406; 2 see also ECF No. 6357 (resolving objections to parts of Kuich Testimony).10 Additionally, in 3 accordance with the parties’ stipulation, the court accepted declarations from defendants’ 4 attorneys Rae Onishi, Esq., Nicholas Weber, Esq. and Melissa Bentz, Esq. in lieu of their live 5 testimony. See ECF No. 6337; see also 10/23/19 RT at 444:2-7. 6 Following hearing, on October 22, 2019, the court heard closing argument from 7 plaintiffs and defendants. ECF No. 6364; see also Reporter’s Transcript of Proceedings 8 (10/22/19 RT), ECF No. 6379. The court also received a written statement regarding the 9 evidence presented at hearing from Dr. Golding’s counsel. ECF No. 6362. On October 23, 2019, 10 the court pronounced oral findings and conclusions in open court. ECF No. 6365. It is those 11 findings and conclusions that are memorialized in this order. 12 C. Witnesses 13 As discussed above, the court heard live testimony from eight witnesses and 14 received the deposition testimony of a ninth witness. The record memorializes the testimony of 15 all the witnesses and ultimately their testimony speaks for itself. The court has considered all of 16 the testimony and exhibits. The court’s assessment of certain witnesses in particular, including 17 their credibility and the substance of their testimony, is central to the court’s findings and 18 19 20 10 The court reviewed the annotated Kuich deposition transcript and ruled on the parties’ objections prior to the time the annotated deposition transcript was filed on the docket. Compare 21 ECF No. 6357 (filed 10/21/19) with ECF No. 6406 (filed 12/5/19). The texts of the two 22 transcripts are identical. For technical reasons not clear to the court at this time, the annotated version used by the court to rule on the parties’ objections contained signals that suggested 23 objections were one page later in the transcript than the actual pagination, which did not show in this version after page 7. For this reason, the page numbers cited in the court’s October 21, 2019 24 order ruling on objections, ECF No. 6357, do not match the page numbers in the annotated Kuich deposition transcript filed on the docket at ECF No. 6406. Accordingly, the court’s October 21, 25 2019 order is deemed amended to change each page number cited in that order by subtracting one 26 from the cited page number. For example, the first objection cited in the order is at 24:25 to a question at 24:22-24, and the answer at 25:1 is disregarded. There is no suggestion in the record 27 that this change has prejudiced or will prejudice any party. 28 1 conclusions, and to the clarification, cleansing and purging necessary to move this case forward. 2 The court therefore reviews its assessments of these selected witnesses below. 3 1. Dr. Michael Golding 4 The court first heard from Dr. Golding. Based on the substance of his testimony 5 and his demeanor on the witness stand, the court finds Dr. Golding credible. His observations 6 and conclusions overall are well-founded. When he learned that the psychiatrist compliance 7 indicator for timeliness of EOP appointments on the Mental Health Dashboard11 “had turned 8 green,” he asked a Senior Psychiatrist Specialist member of his headquarters team, Dr. Melanie 9 Gonzalez,12 to “look at the data to see what was going on.” 10/15/19 RT at 45:2-7; 76:6-11. 10 Working with Dr. Kuich,13 see Kuich Dep. at 89:25-94:11, Dr. Gonzalez performed the requested 11 analysis, and that analysis informs the conclusions in Dr. Golding’s Report as well as in her 12 report. The defendants’ contentions articulated in their closing, that Dr. Golding “just about 13 disagrees with everyone,” 10/22/09 RT at 426:4, and that he has a pro-psychiatry bias, are not 14 well-founded and even if they contain a grain of truth do not undermine the doctor’s credibility. 15 Whether or not Dr. Golding has a disagreeable side, which was not evident during his testimony, 16 is irrelevant to whether he testified credibly and knowledgeably. And it would be understandable 17 11 In his report, Dr. Golding describes the Mental Health Dashboard as “CDCR’s self 18 monitoring tool.” ECF No. 5988-1 at 4. The Mental Health Dashboard uses red, yellow, and green color coding to illustrate the degree of compliance with a wide variety of measures. See, 19 e.g., Kuich Dep. at, e.g., 109:1-20 (“institutions were very much . . . into the dashboard, very much into the metrics, very much into how they’re performing. . . . Tremendous amount of 20 pressure placed on the institutions by the regional staff to be able to get their metrics in the green. 21 And not always did that effort to help the institution get in the green, look at the actual weeks and the details; it just involved work harder, work longer, get it done. I don’t care how you get it 22 done. So if you need a cell side appointment, that’s what you need to do. If you need to do something, that’s what you need to do. We need to go from red to yellow or yellow to green.”). 23 12 Dr. Gonzalez sent a whistleblower report to the Plata Receiver on or about October 24, 24 2018, three weeks after Dr. Golding delivered his whistleblower report. See ECF No. 6363 at 1; 25 10/15/19 RT at, e.g., 54:23 (Golding Report issued October 3, 2018). 26 13 Dr. Kuich worked for CDCR from August 1, 2013 to mid-January 2019, first as a staff psychiatrist at California Health Care Facility (CHCF) in Stockton, then as a senior psychiatrist 27 specialist at CDCR headquarters, and finally as the chief telepsychiatrist. Kuich Dep. at 8:7-9:5. He now works in Hawaii, in the same profession. Id. at 8:7. 28 1 if he has a pro-psychiatry bias. He is, after all, a chief psychiatrist with CDCR, and it is hard to 2 see how advocating for his professional counterparts and the integrity of the mental health care 3 delivery system in CDCR displays a bias that undermines his credibility. 4 Finally, contrary to defendants’ attempt to paint Dr. Golding as a solo outlier, his 5 testimony and his report on the serious matters at issue here do not stand alone. Both Dr. 6 Gonzalez’s report and Dr. Kuich’s deposition testimony corroborate Dr. Golding’s position in 7 substantial and significant ways. Dr. Kuich’s deposition, in particular, provides a very helpful 8 narrative, placing essential pieces of evidence into context in a way that brings the considerable 9 bureaucratic dysfunction within defendants’ operations into clearer focus. 10 Dr. Golding’s explanation for why he was not able to satisfactorily resolve the 11 issues he raised internally and for why he provided his report to the Plata Receiver rather than the 12 Coleman Special Master also are both credible and evidence of the dysfunction illuminated by 13 these proceedings. 14 In one respect, the court does not find other evidence in the record to support Dr. 15 Golding’s strong belief that the Governor’s Office expressly directed the provision of misleading 16 data to the court. Additionally, the court cannot on the present record and does not resolve 17 whether then-Deputy Director Tebrock told Dr. Golding that by telling her about fraud he had 18 “unburdened [him]self,” 10/15/19 RT at 26:19-27:1, because she is an officer of the court, a 19 statement Ms. Tebrock denies making, see id. at 98:8-18. 20 2. Katherine Tebrock 21 At times relevant to the events that gave rise to the Golding Report, Ms. Tebrock 22 was Deputy Director of CDCR’s Statewide Mental Health Program. 10/15/19 RT at 82:13-20. 23 She left that position voluntarily on July 12, 2019. Id. at 82:18-22. She is still employed by the 24 State of California, though she does not work for CDCR and is not a gubernatorial appointee. Id. 25 at 105:1-9. Ms. Tebrock is a person of obvious intelligence and significant abilities. While the 26 court found her testimony credible, that testimony was also disappointing given the overall 27 message it sent. Ms. Tebrock failed to fully accept responsibility for her own failures, including 28 failures in the leadership she was required to exercise given her role as Deputy Director. Perhaps 1 she too was a victim of the bureaucratic dysfunction so plainly evidenced by the record here, and 2 not provided adequate leadership training and support to manage the demands of the complex 3 environment in which she was working. That said, Ms. Tebrock signed at least one key 4 declaration in this case during the relevant time frame and that declaration, which contained 5 misleading information, was filed with the court. See 10/15/19 RT at 103:19-104:6 (discussing 6 ECF No. 5591-2, March 30, 2017 declaration of Ms. Tebrock containing data based on changed 7 business rule that extended timelines between EOP appointments from 30 to 45 days). And she 8 did not ask anyone to correct the data in that declaration even after she became aware of Dr. 9 Golding’s report. 10/15/19 RT at 103:19-104:26.14 She also signed at least five EOP 10 Administrative Segregation Unit (ASU) Hub certification letters15 tendered to the Special Master 11 between January 2017 and May 2017, which contained data created with the changed business 12 rule. See 10/15/19 RT at 105:20-25 (Tebrock testimony that she signed EOP ASU Hub 13 certification letters monthly); see also ECF No. 6330 at 4 (correcting EOP ASU Hub certification 14 letters submitted to the Special Master between January 2017 and May 2017). Although 15 defendants initially took the position they did not have to correct these letters, see ECF No. 6257 16 at 26-27, on October 10, 2019, defendants did send a letter to the Special Master containing 17 corrected data for these letters.16 See ECF No. 6330. Although Ms. Tebrock testified at hearing 18 that she would, if given the chance, correct any pleadings containing erroneous data, 10/15/19 RT 19 at 123:22-124:2, this offer comes too late and rings hollow. Defendants have been given many 20 14 But see note 3 supra. 21 15 Since August 1, 2014, defendants have been required to “provide to the court and the 22 Special Master monthly reports on whether each EOP ASU hub meets Program Guide requirements for an EOP ASU level of care.” ECF No. 5150 at 2-3 (revising ¶ 2c of ECF No. 23 5131 at 73:19-74:3). Defendants are prohibited from admitting any Coleman class member receiving mental health treatment at the EOP level of care “to any EOP ASU hub that has failed 24 to meet or exceed Program Guide requirements for a period of more than two consecutive 25 months.” Id. 26 16 Plaintiffs object that these corrections “do not go far enough.” ECF No. 6360 at 2. The court is in the process of reviewing corrections filed by defendants to date, as well as plaintiffs’ 27 responses thereto and makes no findings at this time concerning the thoroughness or the accuracy of defendants’ corrections to the record. 28 1 months since Dr. Golding filed his report to correct the record, including during the time Ms. 2 Tebrock remained at CDCR. For reasons that are unclear to the court, Ms. Tebrock never availed 3 herself of those opportunities. 4 Ms. Tebrock’s handling of the defendants’ misguided 2018 staffing proposal was 5 also inexplicably constrained, as if carefully curated to preclude meaningful input from 6 psychiatry. Her explanation for her failure to give Dr. Golding a written draft of the staffing 7 proposal before it was finalized – that the proposal was a court document to be wordsmithed by 8 lawyers and therefore its substantive content tightly controlled by lawyers – is wholly 9 unsatisfactory, given lawyers’ unbending obligation to ensure information submitted to the court 10 is, among other requirements, “not being presented for any improper purpose” and “factual 11 contentions have evidentiary support.” See 10/15/19 RT at 99:25-100:22; Fed. R. Civ. P. 11(b). 12 When Dr. Toche later was asked what she made of Ms. Tebrock’s explanation in this respect, Dr. 13 Toche declined to defend it, which speaks volumes. Reporter’s Transcript of Proceedings 14 (10/16/19 RT), ECF No. 6378, at 351:19-352:10. 15 3. Dr. Laura Ceballos 16 Dr. Ceballos is a psychologist who serves as Mental Health Administrator of 17 Quality Management, Inpatient Facilities, for CDCR’s Statewide Mental Health Program and was 18 appointed as Chief of Quality Management in 2009. ECF No. 6012-2 at 1-2. As plaintiffs 19 elicited in their questioning during hearing and pointed out in their closing, Dr. Ceballos designed 20 the Continuous Quality Improvement Tool (CQIT). 10/16/19 RT at 305:4-5; 10/22/19 RT at 21 402:17-24. The CQIT is the measurement tool identified in this case as key to demonstrating 22 defendants’ progress toward and ultimate compliance with a durable remedy. See ECF No. 5477 23 at 3-4 (quoting ECF No. 4232 at 4-5). Despite her central role, Dr. Ceballos’s testimony betrayed 24 little to no appreciation for the letter or the spirit of the court orders underlying the development 25 of CQIT. Rather, for most of her testimony Dr. Ceballos maintained a false distinction between 26 “internal” data she said defendants use without implicating any Coleman court orders, and 27 “external” data formally reported to the court. See, e.g., 10/16/19 RT at 255:14-25, 260:19-261:3. 28 1 In maintaining this distinction she consistently characterized her role as “a clinician . . . not an 2 attorney.” See, e.g., 10/16/19 RT at 304:25. 3 The Special Master has, in the past, considered Dr. Ceballos a key contact and 4 relied on her to tell him or members of his team about significant developments related to this 5 case. Yet Dr. Ceballos testified that she viewed the business rule change that lengthened the 6 interval between EOP appointments from 30 to 45 days as insignificant such that she did not have 7 to report that change to the Special Master or the court. She was consistent in saying she thought 8 the change fell within the Program Guide requirement of “monthly” appointments for EOP 9 patients and was made simply to help psychiatrists improve “continuity of care.”17 See, e.g., 10 10/16/19 RT at 278:23-280:10, 282:10-19. But her position does not withstand scrutiny in light 11 of the record as a whole. Of particular significance, in late 2015 when the request to change the 12 business rule was first raised, it was not approved by Dr. Golding and it went nowhere, yet when 13 the request was made again a year later during a time when defendants were attempting to 14 develop a staffing proposal to address the ongoing psychiatrist shortage the request was granted 15 almost instantly, bypassing Dr. Golding altogether. See Section IV(B)(2)(a) infra. 16 In sum, Dr. Ceballos’s testimony was in critical respects simply not credible. 17 Whether the trust the Special Master previously placed in Dr. Ceballos can be maintained will be 18 up to him, but in the court’s view it would be entirely reasonable for him to conclude that trust 19 has been irreparably undermined. 20 4. Dr. David Leidner 21 Despite plaintiff’s arguments to the contrary, the court found Dr. Leidner’s 22 testimony credible. Fundamentally, Dr. Leidner distinguished himself from the witnesses other 23 than Dr. Golding as someone who exhibited a conscience during his testimony. He understands 24 he made mistakes, did not shrink from explaining that he had and worried about the 25 consequences. Overall, the record suggests Dr. Leidner was working at the direction of others 26 27 17 In this context, “continuity of care” means allowing individual psychiatrists to follow their own patients on a continuous basis. See, e.g., 10/15/19 RT at 191:1-8. 28 1 and working diligently in a dysfunctional system. See, e.g., 10/15/19 RT at 189:20-190:7, 2 195:15-16 (Leidner “took [his] marching orders from Dr. Ceballos and [his managers].”) While 3 he should have been more aware of the results of his actions at the time, and in particular the 4 change in the coding to effect the 30 to 45 day change in intervals between EOP appointments, he 5 was not the key decision-maker on the issues now before the court. 6 The court is not persuaded that Dr. Leidner’s appearance as a witness in 7 proceedings in this case in 2013, see Reporter’s Transcript of Proceedings (12/4/13 RT), ECF No. 8 5013, at 2582-2643, undermines the credibility of his testimony during his second appearance at 9 the October 2019 evidentiary hearing. Cf. 10/22/19 RT at 402:25-403:17. 10 During the time relevant to these proceedings, Dr. Leidner worked at CDCR 11 Headquarters. 10/15/19 RT at, e.g., 207:18-19. Relatively recently, he opted to return to a former 12 position he held at California Men’s Colony. Id. at 207:18-21. It is evident that Dr. Leidner’s 13 colleagues and managers at CDCR Headquarters view his departure as a significant loss. Their 14 assessment makes sense to the court. In a properly designed system, with proper supervision, it 15 appears Dr. Leidner’s significant skills could continue to play an important role both in these 16 remedial proceedings and at CDCR Headquarters more generally. 17 With these observations, the court turns to its broader findings and conclusions. 18 IV. FINDINGS AND CONCLUSIONS 19 A. Fraud on the Court 20 As the court has reviewed in earlier orders, the current proceedings are grounded 21 in this court’s “authority . . . [and] duty, to protect the integrity of the judicial process,” including 22 the court’s “‘power to conduct an independent investigation in order to determine whether [the 23 court] has been the victim of fraud.’” ECF No. 6002 at 4 (internal citations omitted); see also 24 ECF No. 5786 at 2. The court has identified the standards applicable to a determination of 25 whether there has been fraud on the court, as follows: 26 “In determining whether fraud constitutes fraud on the court, the relevant inquiry is not whether fraudulent conduct ‘prejudiced the 27 opposing party,’ but whether it ‘“harm[ed]” the integrity of the judicial process.’” United States v. Estate of Stonehill, 660 F.3d 415, 28 555 (9th Cir. 2011) (internal citations omitted). “Most fraud on the 1 court cases involve a scheme by one party to hide a key fact from the court and the opposing party.” Id. Fraud on the court is shown only 2 “by clear and convincing evidence” that a party tried “to prevent the judicial process from functioning ‘in the usual manner’”; it requires 3 a showing of “more than perjury or nondisclosure of evidence, unless that perjury or nondisclosure was so fundamental that it undermined 4 the workings of the adversary process itself.” Id. at 445. 5 ECF No. 6002 at 4-5. 6 The standard for a finding of fraud on the court is a high one and, as the court 7 found from the bench, is one not met here. In particular, the court does not find the kind of 8 “‘scheme . . . to hide a key fact from the court and the opposing party,’” with an emphasis on the 9 word “scheme,” that is at the core of fraud on the court. 10 B. Knowing Presentation of Misleading Information 11 1. Undisputed that Misleading Information Presented 12 On the other hand, it is clear defendants have presented misleading information to 13 the court. Defendants have admitted that several filings need to be corrected, see, e.g., ECF No. 14 6242 at, e.g., 5, 8, 9 (citing ECF No. 6226 at 3-4, 12-13, 16), and although they do not 15 specifically concede that the necessary corrections are to misleading data, they have begun the 16 process of correcting the record, which continues. See ECF Nos. 6302, 6330.18 As set forth in 17 section IIC, supra, the neutral expert pointed to evidence suggesting defendants had presented 18 misleading information to the court or the Special Master in several areas. The neutral expert’s 19 key suggestions concerning the defendants’ presentation of misleading data are fully borne out, 20 and then some, by the more developed record now before the court. 21 Beyond the three issues set for hearing, discussed below, the record also shows, as 22 the neutral expert’s report suggested, that defendants’ reporting on “Timely Psychiatry Contacts” 23 resulted in reporting of misleading data by overstating Program Guide timeline requirements in 24 two ways: (a) by counting all “non-confidential psychiatry contacts entered into EHRS toward 25 Program Guide timeline requirements for EOP and CCCMS psychiatric evaluations” and (b) by 26 27 18 As noted, see note 3 supra, the court is in the process of review all of the pleadings relevant to a determination of the adequacy of defendants’ corrections to the record. 28 1 defaulting appointments in EHRS to “confidential” without sufficient training and oversight to 2 ensure proper use of this mechanism. ECF No. 6147 at 67-68. Defendants do not dispute the 3 underlying facts, arguing instead that the Program Guide is insufficiently clear that these 4 evaluations need to be confidential. See ECF No. 6242 at 7. But the court resolved that question 5 in August 2019, concluding that an April 18, 2007 memorandum attached to the Program Guide 6 “and a plain reading of the Program Guide support the conclusion these psychiatric evaluations 7 must be confidential.” Id. Defendants stipulated that they have provided, to the court and/or the 8 Special Master, data on Timely Psychiatry Contacts based on the interpretation the court found to 9 be erroneous , and the court directed defendants to provide a date certain by which corrected data 10 would be provided. Id. at 8 (citing ECF No. 6226 at 12-13, ¶¶ 9-10). Defendants’ responses to 11 that order, ECF Nos. 6257 and 6330, and plaintiffs’ responses thereto, ECF No. 6301and 6360, 12 are under submission. 13 The neutral expert also pointed to evidence that defendants submitted misleading 14 data on the timeliness of mental health referrals, “because for medication noncompliant patients it 15 only counted those patients for whom a psychiatrist ordered a medication noncompliance 16 counseling appointment as a matter of discretion,” not all patients who require medication 17 noncompliance appointments. ECF No. 6147 at 84. As a result, the defendants’ performance 18 indicator overstated compliance. Id. at 91. Based on representations of the parties, the court in its 19 August 14, 2019 order found this issue attributable at least in part to a dispute in the 20 “interpretation of how and why medication non-compliant patients are scheduled for follow-up 21 under the CCHCS Medication Adherence Procedure policy” and, perhaps, to a dispute over 22 “whether all medication non-compliance in fact must be captured.” ECF No. 6242 at 11. The 23 parties’ stipulation and for approval of a memorandum clarifying this policy is pending before the 24 court. See ECF No. 6393. 25 The ultimate question for the court to decide, as it does below, is whether 26 defendants’ presentation of misleading information was knowing and if so why. 27 ///// 28 ///// 1 2. Presentation of Misleading Information Was Knowing 2 Plaintiffs urge the court to find defendants knowingly presented misleading 3 information to the court and the Special Master. See, e.g., 10/22/19 RT at 390:21-391:6. 4 Defendants respond by saying the court took no action on any misleading data, suggesting that it 5 is only when a court takes action that reliance on misleading data creates a problem. Id. at 6 427:23-428:3. 7 Given defendants’ argument with respect to the 2018 staffing proposal, it must be 8 stressed there was no court action on that proposal because the then-impending agreement 9 between the parties failed to materialize after Drs. Golding and Gonzalez issued their reports. 10 Thus, the absence of court action on the proposal is because the whistleblower reports blocked the 11 proposal’s presentation to the court in the first place, and not because defendants recognized that 12 aspects of the proposal were based on flawed data and took action to correct the flaws. 13 More broadly, as explained below, the weight of the evidence and the reasonable 14 inferences to be drawn from the totality of the record before the court fully supports the finding 15 that as to the first and third issues covered at hearing, defendants have engaged in knowing 16 presentation of misleading information to the court and to the Special Master. With respect to the 17 second issue, the record shows that the descriptor for “Appointments Seen As Scheduled” 18 indicator did not accurately reflect the components of the indicator. While the court does not find 19 defendants knowingly presented erroneous data created using this indicator, the failure to include 20 an accurate descriptor should have been caught before any data was generated as part of a 21 properly functioning quality management system. 22 As noted above, there were four other areas in which the neutral expert identified 23 evidence suggesting misleading information had been referred to the court and/or the Special 24 Master. See Section IIC supra. In its August 14, 2019 order, ECF No. 6242, the court 25 determined those four issues did not require an evidentiary hearing. As to the second and third 26 items, defendants’ reporting of “Timely Psychiatry Contacts,” which overstates compliance with 27 the timeliness requirements for psychiatry evaluations at the EOP and CCCMS levels of care, the 28 court found a material dispute centered on conflicting interpretations of the Program Guide and 1 whether psychiatry contacts must be confidential. See ECF No. 6242 at 6-7. The court resolved 2 that issue, rejecting defendants’ interpretation of the Program Guide and concluding “that 3 psychiatric evaluations must be ‘confidential’ to satisfy the 30 and 90 day Program Guide 4 requirements.” Id. at 7. The court concluded it was “not necessary to examine the intent behind 5 defendants’ erroneous interpretation” and has referred this matter to the All-Parties Workgroup 6 for development of protocols consistent with the court’s clarifications. Id. at 8.As to the sixth and 7 seventh items, involving submission of misleading data related to timeliness of referrals for 8 medication non-compliant patients, the court determined no evidentiary hearing was required 9 because it was not disputed that a software bug caused one of the errors and the other arose from 10 a dispute over “interpretation of how and why medication non-compliant patients are scheduled 11 for follow-up under the CCHCS Medication Adherence Procedure policy.” Id. at 11. That matter 12 was referred to the All-Parties Workgroup, id., and a stipulation and proposed order with a 13 proposed clarifying memorandum has been submitted to the court for review. See ECF No. 6393. 14 Regarding the four matters before the court, without a full understanding of why 15 defendants knowingly submitted misleading information to the court and Special Master, a proper 16 solution cannot be identified. Therefore, the court has undertaken its own effort to determine why 17 the misleading data was presented, as an essential step on the path to identifying appropriate 18 remedies for this serious roadblock impeding meaningful progress toward full global remediation. 19 a. Changing of EOP Business Rule from 30 to 45 Days 20 i. Background 21 The remedial plan for this action, the Mental Health Services Delivery System 22 Program Guide (Program Guide) requires that a psychiatrist “evaluate each EOP inmate-patient at 23 least monthly to address psychiatric medication issues.” Program Guide, ECF No. 5864-1 at 58. 24 This requirement has been part of the remedial plan at least since 2006, when the court gave final 25 approval to all but a limited number of provisions of the Program Guide that remained in dispute 26 and then ordered the Guide’s immediate implementation. ECF No. 1753-4 at 8; ECF No. 1773. 27 As the neutral expert reported, “[i]t is undisputed that the Program Guide does not define 28 1 ‘monthly.’” ECF No. 6147 at 44. However, the Special Master19 informed the neutral expert that 2 he “has consistently interpreted ‘monthly’ to be ‘30 days,’ since he began monitoring EOP 3 routine appointments in the late 1990s . . .” ECF No. 6147 at 43. He provided the neutral expert 4 with record support for his position, see id., which he has consistently articulated with the court. 5 The neutral expert also noted documentary evidence showing that prior to the business rule 6 change at issue defendants had also interpreted “monthly” in this context to mean 30 days. See, 7 e.g., id. at 45 (“documents show that CDCR used 30 days to measure compliance with the 8 Program Guide requirement that EOP patients have ‘monthly’ psychiatric evaluations. In 2016, 9 for example, in connection with the production of data for the Special Master for the 27th Round 10 of monitoring, CDCR used a definition of ‘every 30 calendar days after previous psychiatry 11 contact’ to measure compliance with the ‘monthly’ requirement for EOP psychiatric 12 appointments. ECF No. 6012-2 at 154 (Ceballos Decl. at Ex. 3).”). 13 “A business rule is, at the most basic level, a specific directive that constrains or 14 defines a business activity. . . Business rules can be applied to computing systems and are 15 designed to help an organization achieve its goals. Software is used to automate business rules 16 using business logic.” https://www.techopedia.com/definition/28018/business-rule. As relevant 17 here, CDCR applies business rules to its computing systems to manage and report data. See, e.g., 18 ECF No. 6012-3 at 2-4 (Leidner Decl.); 10/15/19 RT at 86:21-23 (testimony of Katherine 19 Tebrock). As Dr. Leidner explains, “[f]rom 2010 to 2017, CDCR collected data regarding mental 20 health treatment through the Mental Health Tracking System (MHTS), a web-based tool 21 developed to track clinical contacts, referrals, and other data related to the provision of mental 22 health services.” ECF No. 6012-3 at 2. Former Deputy Director Tebrock testified that MHTS 23 “had been negotiated and discussed with the Special Master and his team over the course of many 24 years” and that CDCR “had preserved or attempted to preserve, to the extent possible, all of those 25 rules to maintain fidelity.” 10/15/19 RT at 87:3-7. 26 27 19 The Special Master has served in that capacity since November 1, 2007 and served as Deputy Special Master from February 15, 1996 until November 1, 2007. ECF Nos. 664, 2453. 28 1 “Beginning in 2016, CDCR implemented an electronic health record called the 2 Electronic Health Record System (EHRS) which replaced MHTS.” ECF No. 6012-3 at 2. Data 3 collected in the EHRS is stored in the Health Care Data Warehouse, “a group of high-capacity 4 computer servers into which data from numerous sources, including EHRS, CDCR’s Strategic 5 Offender Management System (SOMS), and the Department of State Hospitals, are routed and 6 stored. Historical data, such as MHTS data, are also stored in the Data Warehouse.” Id. at 2-3. 7 Data in the system are used, among other things, to generate management reports, which “are 8 designed to help staff provide timely patient care, manage resources, and give feedback on 9 compliance with guidelines, including various requirements imposed by orders in this case.” Id. 10 at 3. One such report is the Mental Health Performance Report, “which displays a set of 11 indicators measuring performance in numerous areas, including compliance with mental health 12 treatment required by the Program Guide, by health care regulations, and by CDCR health care 13 policies and procedures.” Id. at 3. This report is comprised of “over 150 active indicators 14 summarizing about 4,000,000 individual measurements each month. The logic underlying the 15 indicators relies on over 230 business rules that stipulate a required action, the population it 16 applies to, what triggers that requirement, and how much time is allowed to complete that 17 requirement. All of these parameters are determined by the managers of the Statewide Mental 18 Health Program.” Id. at 4. 19 ii. Review of Evidence 20 Until December 2016, the relevant business rule for the Program Guide 21 requirement that a psychiatrist “evaluate each EOP inmate-patient at least monthly to address 22 psychiatric medication issues” used a period of 30 days to measure compliance. See, e.g., 23 10/15/09 RT at 195:5-12 (testimony of David Leidner); 10/16/19 RT at 250:14-16 (testimony of 24 Laura Ceballos); Neutral Expert Report, ECF No. 6147 at 45 (documents cited therein). Certain 25 persons working within CDCR raised questions about changes to this business rule, initially in 26 late 2015. The Neutral Expert Report points to evidence suggesting two psychiatrists who were 27 28 1 working at CHCF,20 Drs. Jahangiri and Anand, raised the issue, which was then presented to 2 CDCR headquarters in an email from Julie Kirkman, “a Medication Court Administrator and Pre- 3 Release Coordinator at CHCF.” Id. At hearing, Dr. Leidner testified Dr. Jahangiri first raised the 4 issue with him at a weekly state-wide webinar Dr. Leidner conducted in November 2015. 5 10/15/19 RT at 189:10-17. Dr. Leidner told Dr. Jahangiri it was “technically possible” to change 6 the business rule and told him to raise the issue with Dr. Golding. Id. at 189:24-190:4. The 7 neutral expert found evidence that Dr. Anand emailed Dr. Golding in February 2016, requesting 8 to change the business rule from “30 days” to “monthly” “so as to help ease psychiatrists’ 9 tracking issues, reduce staffing needs, help psychiatrists manage their own outpatient caseloads, 10 and other issues.” ECF No. 6147 at 45-46. No action was taken on the request at that time, id. at 11 46, and it is undisputed that Dr. Golding did not approve the request. 12 In December 2016, Ms. Kirkman raised the request again in a phone call with Dr. 13 Leidner. 10/15/19 RT at 191:1-13. The same day, Dr. Leidner discussed the request in a 14 telephone call with Dr. Ceballos. Id. at 192:6-193:5. During the call, Dr. Ceballos approved the 15 request and told Dr. Leidner to make the change. Id. at 193:22-194:4. Dr. Ceballos also did not 16 consult with Dr. Golding about the renewed request before she approved it. She testified that she 17 “forgot” to consult him about the change even though she sent him an email on December 5, 2016 18 about other EOP-related matters. 10/16/19 RT at 283:15-284:5. Dr. Ceballos also did not discuss 19 the request with then-Deputy Director Tebrock before approving it or, apparently, at any time. 20 See 10/15/19 RT at 86:3-20. As noted above, Dr. Ceballos did not report the change to the 21 Special Master or the court because she did not view it as “significant.” 10/16/19 RT at 249:19- 22 250:11. 23 The Neutral Expert Report points to evidence that “[a]t least some of the 24 psychiatry team was notified of the rule change in January 2017. See CDCR0016721-22. An 25 email discussing the modified rule was forwarded to Dr. Golding by psychiatrists Dr. Mann and 26 20 CHCF is a medical and mental health care facility for inmate-patients in CDCR. It 27 “provides medical care and mental health treatment to inmates who have the most severe and long term needs.” https://www.cdcr.ca.gov/facility-locator/chcf/. 28 1 Dr. Lindgren, but it is unclear whether Dr. Golding read it. CDCR0016719-21.” ECF No. 6147 at 2 46. In his whistleblower report. Dr. Golding averred he first became aware of the change in 3 March or April 2017, when the “headquarters psychiatry team noticed that all the 20 psychiatrists 4 across the institutions seemed to be doing better in terms of seeing EOP patients in a more timely 5 way.” ECF No. 5988-1 at 23. At hearing, he testified he was certain the business rule change 6 would affect data provided to the court “because the dashboard for EOP had turned green, and 7 people were contacting us. Psychiatrists were contacting us across the state and laughing about 8 how much easier it was to be compliant at the EOP level of care, . . .” 10/15/19 RT at 44:12-45:6; 9 see also id. at 76:6-11 (Golding testimony that he learned about the business rule change because 10 Dr. Gonzalez told him “that the dashboard was looking greener than you expected it to be. . . .”). 11 Dr. Golding first reported problems with the rule change to Drs. Ceballos and Leidner, who 12 agreed to change it back. See id. at 16:20-21, 195:13-19. Specifically, Dr. Golding raised the 13 issue with them on or about March 21, 2017, id. at 16:20-21, and Dr. Leidner changed the rule 14 back on or about April 14, 2017, id. at 195:19. 15 In her whistleblower complaint, Dr. Gonzalez avers that in December 2016, when 16 she was working as a staff telepsychiatrist at CDCR headquarters, she noticed that her EOP 17 patients “were suddenly due for follow-up appointments every 45 days or by the end of the next 18 calendar month (whichever was sooner), rather than every 30 days.” ECF No. 6363 at 6. When 19 she learned there had been no policy change regarding the required frequency of EOP psychiatry 20 appointments, she reported the change in the Current Due Dates report to Dr. Golding and he 21 “asked [her] to look into it further.” Id. She discovered that the change could actually permit a 22 gap of 8 weeks between appointments to be reported as 75 percent compliant. Id. She reported 23 her findings to Dr. Golding, who “followed up” with quality management staff regarding the rule 24 change, which was “reverted back to 30 days shortly thereafter.” Id. 25 At his deposition, Dr. Kuich testified that during the time frame the 30-day rule 26 was changed “[t]here was a tremendous focus on EOP” to see if individuals at this level of care 27 were properly placed. Kuich Dep. at 91:17-93:8. He testified that the push “was a systemwide 28 push, not from psychiatry but from the system, to be able to look at EOP patients specifically and 1 to find out” whether their needs were being met or could “be met at a lower level of care.” Id. at 2 91:21-24. He also noticed a “significant improvement” in compliance in this area, which he 3 “liken[ed] to an improvement he noticed during a quality management meeting having to do with, 4 . . . , use of nonformulary medications, that suddenly everyone who was noncompliant became 5 compliant, and we couldn’t quite figure out what happened. And tracing it back, they had 6 changed the formula for that, and that resulted in a better value, . . .” Id. at 93:5-13. Dr. Kuich 7 believed that the change in the business rule from 30 to 45 days was not consistent with Program 8 Guide requirements. Id. at 94:12-24. 9 There is no dispute that defendants “submitted data using the modified [business] 10 rule to the [c]ourt in” at least two court filings. See ECF No. 6242 at 5 (citing ECF No. 6226 at 3- 11 4, Issue B(A)(4), (11), (12)); see also ECF No. 6147 at 48 (citing ECF No. 5591 at 14 12 (Defendants’ Response to the Special Master’s Report on the Status of Mental Health Staffing 13 and the Implementation of Defendants’ Staffing Plan); ECF No. 5591-2 at 4, 9 (Tebrock Decl. 14 ¶ 10, Ex. 2); ECF No. 5601 at 8-9 (Defendants’ Reply to Plaintiffs’ Objections and Request for 15 Additional Relief)). The Neutral Expert Report cites evidence that “CDCR also reported 16 compliance figures from the “Timely Psychiatry Contacts” indicator during this time frame on at 17 least one ASU EOP HUB certification. This report was not filed with the Court, but was 18 submitted to the Special Master. See PLTF005299 (RJD).” ECF No. 6147 at 44. 19 As noted, Dr. Golding made his request that the rule be changed back to 30 days 20 on or about March 21, 2017. The Neutral Expert Report cites evidence that before the rule was 21 changed back on April 14, 2017, “on March 28, 2017, Deputy Tebrock sent an email noting that 22 the Governor’s office had asked ‘to explain in more detail what metrics can be used to show that 23 the care by psychiatry is adequate.’ CDCR0016999,” and that “[o]n March 30, 2017, CDCR filed 24 Defendants’ Response to the Special Master’s Report on the Status of Mental Health Staffing and 25 the Implementation of Defendants’ Staffing Plan, ECF No. 5591, relying upon data under the 45- 26 day rule. ECF No. 6012 at 13.” ECF No. 6147 at 48. 27 ///// 28 ///// 1 iii. Findings 2 The change in the business rule from 30 to 45 days was a material change that was 3 inconsistent with implementation of the relevant Program Guide requirement as established 4 through more than a decade of practice. The change should have been thoroughly vetted before it 5 was implemented; thorough vetting would have included, at a minimum, consultation with 6 Deputy Director Tebrock and Dr. Golding and reporting to the Special Master in advance of the 7 change. 8 Defendants’ argument that the change was prompted by a request from the field to 9 improve continuity of care does not go far enough to explain why it was accomplished without 10 the proper vetting. The request does appear to have come from a medication administrator at 11 CHCF, and while implemented it apparently provided some relief to psychiatrists in the field by, 12 for example, allowing them to go on vacation and still see the same patients in what Dr. Ceballos 13 saw as a reasonable time frame. But the first time the request was made, in 2015, it went 14 nowhere because Dr. Golding did not approve it. The second time the request was made, during a 15 critical juncture when the Special Master was preparing a court-ordered “stand-alone report on 16 the status of mental health staffing and implementation of defendants’ staffing plan,” see ECF 17 No. 5564 at 6-7 (citing ECF No. 5477 at 8-9), no one checked with psychiatry and the change 18 sailed through. Drs. Golding, Gonzalez and Kuich all learned of the change only after relevant 19 “dashboards” designed to measure compliance with remedial requirements of this court changed 20 from red to green overnight and then undertook an investigation to try to understand the reasons 21 behind the change, which was not at all transparent. Given its timing, the rule change affected a 22 period when the Special Master had been tasked with receiving monthly updates on the status of 23 defendants’ implementation of their January 10, 2017 updated staffing plan and filing a stand- 24 alone report on the status of mental health staffing and defendants’ implementation of that plan. 25 See, e.g., ECF Nos. 5477, 5564. The context supports the clear inference of willful blindness at 26 least, or reckless indifference to defendants’ obligations in this action. And, in specific answer to 27 the questions posed for hearing on this issue in the August 14, 2019 order, this willful blindness 28 or reckless indifference is attributable to Dr. Ceballos, the individual who authorized the change 1 in December 2016. To a lesser extent, it is also attributable to systemic failures of CDCR 2 management to ensure that all staff, including those tasked with developing key software codes, 3 have a complete understanding of the remedial requirements of this action so that they can, to the 4 extent possible, make sure the data reports produced to support defendants’ provision of 5 constitutionally adequate mental health care will accurately measure the remedial requirements 6 for this action. 7 As noted above, defendants have undertaken to correct at least some of the 8 misleading information in the record uncovered as a result of the Golding Report. See, e.g., ECF 9 Nos. 6302, 6330. But they have undertaken that effort only after the court set this matter for 10 evidentiary hearing and directed the parties to meet and confer in an effort to narrow the scope of 11 issues for hearing. As noted, the court is currently in the process of reviewing the parties’ filings 12 to determine whether in fact the record has been completely corrected and will address that 13 question in a subsequent order. 14 b. “Appointments Seen As Scheduled” Indicator 15 i. Background 16 The Plata Receiver initially developed the “Appointments Seen As Scheduled” 17 indicator, 10/15/19 RT at 197:21-24, apparently for use as a metric to assess efficiency in 18 scheduling and completing medical appointments. Annette Lambert, Deputy Director of Quality 19 Management, Informatics and Improvement for California Correctional Health Care Services 20 (CCCHS), run by the Receiver, told the neutral expert 21 the “Appointments Seen as Scheduled” indicator was developed independently from the Program Guide by the medical unit, and 22 adopted by Mental Health around 2016. She stated, “[F]rom the medical perspective we introduced seen as scheduled as an efficiency 23 metric. And what we were primarily looking at is how much are we seeing cancellations of clinics based on factors that arguably are 24 under our control.” Lambert Tr. at 82:16-20. 25 ECF No. 6147 at 73. Similarly, Dr. Ceballos told the neutral expert 26 that CDCR Mental Health updated its “Appointments Seen as Scheduled” indicator sometime in 2016 to match the CCHCS Health 27 Care Dashboard indicator, and thereby include only those 28 1 appointments that were missed due to a factor within CDCR’s control. Ceballos Tr. at 147:8-16, 148:9-10, 148:22-149:3. 2 3 Id. 4 ii. Review of Evidence 5 At hearing, Dr. Leidner testified that “[a]t some point” he “was asked to replicate 6 that” indicator on a performance report for mental health appointments. 10/15/19 RT at 197:25- 7 198:2. Witnesses told both the neutral expert and this court that the indicator was not directly 8 connected to any Program Guide requirement or Coleman court order. See id. at 198:18-25 9 (Leidner testimony); see also ECF No. 6147 at 73 (“CDCR witnesses generally reported that the 10 “Appointments Seen as Scheduled” . . . indicator[] [was] developed for internal use only for 11 measuring the performance of the institutions. . . .”). Dr. Leidner testified that the criteria used in 12 creating the indicator were the Plata Receiver’s criteria developed for medical appointments, and 13 that while he had to recode the indicator to make it applicable to mental health appointments he 14 did not make any substantive changes and tried “to just replicate their [the Plata] methodology.” 15 10/15/19 RT at 198:5-17. Dr. Rekart testified that after the Golding Report came out he heard the 16 description of the indicator had not been updated to reflect certain changes that had been made to 17 the indicator itself. 10/15/19 RT at 166:16-167:6. Dr. Leidner testified to the same 18 understanding. Id. at 201:14-16. He also testified he thought “perhaps” the description matched 19 the indicator initially, but he “failed to update” the description of the indicator when the 20 Receiver’s staff changed some criteria in the indicator sometime before February 2016. Id. at 21 202:5-10, 208:7-10. Dr. Leidner testified that he learned of the error from Dr. Ceballos 22 “sometime around October 9th, before [he] had any knowledge of the Golding report . . . and 23 [he] basically changed it that day to match what it was really doing.” 10/15/19 RT at 224:20- 24 225:11. “At some point during the neutral expert’s investigation,” after the neutral expert’s 25 investigation was over and before Dr. Leidner left CDCR headquarters he reported it to Dr. 26 Ceballos and also discussed it during a telephone conference call. Id. at 206:13-207:9. Dr. 27 28 1 Leidner left CDCR headquarters at the end of July 2019 and has not been involved in correcting 2 the descriptor to match the indicator. Id. at 207:15-19.21 3 Most testimony suggested that, substantively, the indicator was developed as a 4 means of determining how many appointments were cancelled for reasons within CDCR’s 5 control. The day after Dr. Leidner’s testimony, in lieu of recalling him to the stand, defense 6 counsel made an offer of proof in lieu of further testimony from Dr. Leidner, explaining that Dr. 7 Leidner had, subsequent to testifying, clarified that 8 the indicator is a ratio where the denominator is all mental health appointments that were either seen or canceled and not rescheduled 9 for one of the four controllable cancellation reasons: Technical difficulties, modified program, lack of transport or provider 10 unavailable. The numerator is all appointments from the denominator that were seen. 11 12 10/16/19 RT at 247:20-248:1.22 Despite this stated purpose, and although there seems to be 13 general agreement that the “Appointments Seen As Scheduled” indicator was not directly related 14 to any specific provision of the Program Guide, Dr. Golding testified he thinks “many aspects” of 15 the Program Guide make measuring appointments seen as scheduled quite relevant. 10/15/19 RT 16 at 68:9-69:7. It is undisputed that data generated using this indicator were provided to the court 17 and to the Special Master. The neutral expert identified these specific ways in which these data 18 were transmitted: 19  Defendants’ May 17, 2018 Staffing Proposal, ECF No. 5841- 2 at 4 n.5 (stating “[a]ppointments occurred as scheduled 20 98% to 100% of the time” over the prior 12 months to support 21 21 Dr. Leidner also testified that “at some point during . . . the neutral expert’s 22 investigation” he learned that the criteria for the Plata Receiver’s Appointments Seen As Scheduled indicator and the criteria for the mental health Appointments Seen As Scheduled 23 indicator did not match, even though the original instruction to him had been to replicate the Plata indicator for mental health. 10/15/19 RT at 205:13-206:20. He did not know “when they 24 diverged . . . [or] if they ever exactly matched, but the intent was that they were supposed to.” Id. 25 at 206:17-20. After the neutral expert’s investigation was over and before leaving CDCR headquarters he reported this to Dr. Ceballos and also discussed it during a telephone conference 26 call. Id. at 206:13-207:9. Here as well, he does not know what has happened to the indicator since. Id. at 207:15-19. 27 22 Plaintiffs accepted this offer of proof as a correction of the record. Id. at 248:4-7. 28 1 the assertion that “CDCR is meeting the needs of class members in the desert institutions”). 2 • CQI data provided to the Special Master. See, e.g., 3 PLTF000894, “CEN Mental Health Performance Report for 4/1/16 to 10/24/16” (reporting 100% of “Appointments Seen 4 as Scheduled”); PLTF000896, “LAC Mental Health Performance Report for 3/1/16 to 9/26/16” (reporting 91% of 5 “Appointments Seen as Scheduled”). 6 • At least one CQI Report to the Special Master. See CDCR0019053, Regional Continuous Quality Improvement 7 Review for RJD, October 10-14, 2016 at 12 (“ML EOP had 94% of appointments seen as scheduled” and “ML CCCMS 8 had 94% (n=16,333) of their appointments seen as scheduled”). 9 10 ECF No. 6147 at 73. 11 iii. Findings 12 Even accepting that the “Appointments Seen As Scheduled” indicator was created 13 originally for “internal” measurement purposes and is not required by the Program Guide, Dr. 14 Golding is correct that the Special Master relies on information generated using the indicator in 15 conducting his monitoring. And even if the court credits Dr. Ceballos’ testimony that Dr. 16 Golding does not understand the data, see 10/16/19 RT at 294:19-295:25, that testimony only 17 highlights a more significant issue: defendants have not adopted processes necessary to make 18 their data methodology fully transparent and understandable to all key stakeholders, including the 19 chief psychiatrist. See also 10/15/19 RT at 36:1-21 (Golding testimony concerning psychiatrists’ 20 lack of access to data for independent evaluation and that psychiatry leadership “can’t organize 21 and program data to look across institutions to be able to see whether there are errors being made 22 in medical care.”). 23 As for the flawed descriptor, the error appears to have been unintentional, and Dr. 24 Leidner brought it to the attention of Dr. Ceballos and others soon after he became aware of it. 25 10/15/19 RT at 207:2-5 At the same time, because the descriptor is the public-facing information 26 about the code, it is critical to transparency that the descriptor be accurate. This is the type of 27 error that a system needs to catch quickly, if not avoid altogether. Thus, Dr. Leidner’s testimony 28 1 that he does not know whether the descriptor has been corrected since he left CDCR headquarters 2 at the end of July 2019, id. at 207:13-19, is troubling. 3 Moreover, defendants are not correct in believing that missed appointments are not 4 relevant to patient care. Dr. Kuich’s deposition testimony is very instructive as to why properly 5 tracking missed appointments is relevant. Such tracking contributes to qualitative analysis, 6 including identification of trends and patterns at local institutions that is not available otherwise, 7 absent a very detailed manual tracking. The court credits Dr. Toche’s testimony concerning 8 remedial measures to be explored, which sounds promising assuming there is transparency and 9 full communication with the Special Master and the court going forward. The court will address 10 this issue further, as appropriate in its forthcoming remedial order. 11 Finally, one of the specific questions posed in the court’s August 14, 2019 order 12 with respect to this issue is how the Appointments Seen As Scheduled indicator was developed 13 incorrectly and in the absence of consultation with Dr. Golding or other quality control measures, 14 and what steps defendants plan to take to ensure indicators and definitions are developed with 15 appropriate consultation and quality control in the future. The answer is found largely in one of 16 the most significant issues surfaced through the hearing: the extent to which court-ordered 17 coordination between this action and the Plata action, as well as defendants’ obligation to work 18 with the Special Master in this case, appear to have gone off track. As the discussion in Section 19 IV(C)(2) demonstrates, the boundaries between Plata and Coleman appear to have blurred in key 20 respects. A return to robust and transparent coordination between the efforts in this action to 21 remediate constitutionally inadequate mental health care and the efforts in Plata to remedy 22 constitutionally inadequate medical care must be a key focus and priority going forward. 23 c. Supervisors Acting As Line Staff 24 i. Background 25 In 2009, the court ordered defendants to “take all steps necessary to resolve all 26 outstanding [mental health] staffing allocation issues” and “[t]o that end, . . . complete a staffing 27 plan by the end of August 2009.” ECF No. 3613 at 2. After receiving an extension of time, 28 defendants filed the required plan on September 30, 2009. ECF No. 3693. Defendants’ 2009 1 Staffing Plan is the controlling plan prescribing necessary levels of mental health care staffing in 2 CDCR’s Mental Health Care Delivery System (MHSDS). “The plan provides staffing ratios for 3 the programs at each level of defendants’ MHSDS and other ancillary programs. See ECF No. 4 3693 at 12-33. These ratios are expressed as one mental health staff person per x number of 5 inmate patients. See id.” ECF No. 5711 at 3. 6 The 2009 Staffing Plan contains ratios for staff psychiatrists at each level of the 7 MHSDS, with the exception of intermediate and acute levels of inpatient care. See id. at 17-18 8 (citing ECF No. 3693 at 12-24). The 2009 Staffing Plan also provides ratios for supervising 9 senior psychiatrists only in mental health crisis bed (MHCB) units and in mental health outpatient 10 housing units (MH-OHUs). Id. at 18. Those ratios are extremely high relative to those for staff 11 psychiatrists in the same units: in MHCB units, the ratio of staff psychiatrists to patients is 2.5 to 12 25, while the ratio of supervising senior psychiatrists to patients is 1:50, and in MH-OHUs, the 13 ratio of staff psychiatrists to patients is 1:9 and the ratio for supervising senior psychiatrists to 14 patients is 1:150. Id. at 18. The job description of Senior Psychiatrist, Supervisor in the 2009 15 Staffing Plan is as follows: 16 Approximately one third of CDCR prisons will have a Senior Psychiatrist, Supervisor. Senior Psychiatrist, Supervisor positions 17 will be allocated to prisons that do not have a Chief Psychiatrist but have a significant number of staff psychiatrists providing services to 18 a largely stable inmate-patient population. Senior Psychiatrist, Supervisor positions will also be allocated to several prisons that 19 have a Chief Psychiatrist and that have large and complex mental health services. Senior Psychiatrist, Supervisors will provide clinical 20 supervision of staff psychiatrists, as well as various administrative tasks related to formulary, medication management, and continuity 21 of psychiatric medications. Senior Psychiatrist, Supervisors are responsible for the generation and periodic reviews of LOPs 22 pertaining to the practice of psychiatry and for ensuring that practices are consistent with the most recent departmental policies. Further, 23 Senior Psychiatrist, Supervisors share responsibility for quality improvement activities including peer/professional review 24 processes. 25 ECF No. 3693 at 32. 26 ii. Review of Evidence 27 The neutral expert provided evidence that supervising psychiatrists see inmate 28 patients for clinical appointments, that some level of participation by supervising psychiatrists in 1 clinical patient care is appropriate, that the EHRS does not track the extent to which supervising 2 psychiatrists see patients, and that “it does not appear that CDCR had ready access to a data set 3 based on supervisor-only appointments.” See ECF No. 6147 at 80-82 and evidence cited therein. 4 These facts were all confirmed in testimony at hearing. 5 There is no dispute that CDCR supervising psychiatrists see inmate patients for 6 clinical appointments, or that some level of participation in clinical care by supervising 7 psychiatrists is appropriate. See, e.g., 10/15/19 RT at 74:9-14; Kuich Dep. at 206:21-207:5. At 8 hearing, Angela Ponciano, Associate Director for CDCR’s Statewide Mental Health Program, 9 testified that CDCR has not “tracked specifically” “how the number of patients seen by 10 psychiatric supervisors providing direct patient care affects staffing ratios,” 10/15/19 RT at 11 134:19-22, that the EHRS does not include a performance report “that allows accurate reporting” 12 of when supervisors act as line staff, 10/15/19 at 147:15-19, and that because of this the analysis 13 of supervising psychiatrist patient contacts she conducted after the Golding Report came out was 14 a multi-step process. Id. at 147:17-25. Dr. Golding contends this information can be tracked; at 15 hearing he described two different methods for tracking the extent to which clinical services are 16 provided by supervising psychiatrists. 10/15/19 RT at 50:3-51:21. Both methods involved 17 running a caseload report using supervising psychiatrists’ names and generating a list of patients; 18 these reports were then analyzed under two different methodologies, one controlling for caseload 19 ratios at each level of care and the other by comparing the frequency of supervising psychiatrists’ 20 patient visits with those of line psychiatrists. Id. Dr. Golding also testified that at least since 21 2018 his staff has called each institution monthly to determine the level of psychiatric coverage at 22 the institution and “whether supervisors are providing coverage.” 10/15/19 RT at 48:17-20. He 23 further testified that “[on numerous occasions” the reports generated by these calls “have been in 24 the hands of Deputy Tebrock, Ms. Ponciano and Ms. Brizendine” and that “[at] one point they 25 tried to get” Dr. Golding and his team to stop this monthly tracking, but the team continued to 26 conduct the tracking. 10/15/19 RT at 48:17-24. 27 ///// 28 ///// 1 In his report, Dr. Golding avers that 2 [t]he staffing ratios CDCR reported to the court in the 2018 staffing report are incorrect. Sixty percent of psychiatric supervisors were 3 seeing patients like line staff at least part time, and in some cases full time. The work was being done by a larger ratio of psychiatrists to 4 patient that was reported, suggesting that fewer psychiatrists are needed per patient than is in fact the case. 5 6 ECF No. 5988-1 at 5. At hearing, he testified that psychiatric supervisors spend about fifty 7 percent of their time conducting line visits. 10/15/19 RT at 51:9-21. At his deposition, Dr. Kuich 8 estimated that psychiatric supervisors have performed line duties more than a third but less than 9 fifty percent of the time. Kuich Dep. at 30:14-31:1. 10 After Dr. Golding issued his report, Ms. Ponciano conducted an analysis “on the 11 number of CCCMS and EOP psychiatry appointments involving supervisors and chiefs at each 12 institution.” ECF No. 6147 at 80; see also 10/15/19 RT at 135:1-15. She testified she “found that 13 there were not 60 percent of supervisors carrying a full line staff caseload for those levels of 14 care.” 10/15/19 RT at 136:3-5. She later performed a second analysis, which showed that if 15 supervisors’ clinical contacts were removed from the “frequency of contacts” report on which 16 defendants’ 2018 staffing proposal was based, the frequency of psychiatrist contacts for both 17 CCCMS and EOP patients decreased. 10/15/19 RT at 138:13-139:6; see also ECF No. 6242 at 10 18 (citing ECF No. 6226 at 20 ¶ 6). 19 The neutral expert conducted interviews in the field with psychiatrists who report 20 variation in responsibilities from institution to institution, supporting the inference that Ms. 21 Ponciano’s analysis underrepresents the actual amount of time psychiatrist supervisors spend 22 performing the duties of line psychiatrists: 23 Psychiatrists agreed that this issue varied significantly by institution, but all acknowledged that it was not uncommon for psychiatry 24 supervisors to see patients. One psychiatrist noted that at some institutions, a single psychiatrist (sometimes a supervisor or chief) 25 handles all IDTT appointments. Another psychiatrist noted that as a supervisor, she was assigned the case load of three line staff. One 26 Chief Psychiatrist described that [s]he provides a lot of the care, but could not provide a specific volume. [S]he commented that if [s]he 27 did not provide direct care, the institution would be out of compliance. Another Chief Psychiatrist reported that [s]he did not 28 routinely see patients or have a set patient load. 1 A senior supervising psychiatrist said it was expected that supervisors perform the same duties as line staff when there are 2 staffing shortages—the culture of leadership was that psychiatrists should be utilized. That psychiatrist explained that when [s]he took 3 on the senior supervisor position [s]he was doing line staff work at least 50% of the time, and [s]he currently still covers IDTTs and 4 other line work when other psychiatrists are not available. 5 The anecdotal evidence from multiple psychiatrists suggests that Ms. Ponciano’s data analysis undercounts the amount of patient care 6 being provided by supervisors. It is clear, however, that the degree to which supervisors provide direct care varies widely by institution and 7 over time, and so we were unable to more precisely quantify this activity. 8 9 ECF No. 6147 at 81-82. 10 As the court discussed in its August 14, 2019 order, the parties have stipulated 11 “that the data on timely psychiatric contacts prepared in support of CDCR’s 2018 Staffing 12 Proposal to reduce the number of psychiatrists was ‘potentially misleading’ because the proposal 13 did not disclose that appointments with psychiatric supervisors were included in the data.” ECF 14 No. 6242 at 10. The neutral expert also suggested other documents contain representations about 15 staffing without accounting for “contributions from psychiatrist supervisors, including: 16 • Monthly reports on staff psychiatrist vacancy rates. See, e.g., PLTF005201, PLTF005207. 17 • Defendants’ Response to the Special Master’s Report. ECF 18 No. 5591 at 14 (“Over the past year, inmates were seen timely . . . by their psychiatrist ninety percent of the time.”) 19 (emphasis added), 15 (reporting 74% average fill rate for psychiatrists). 20 • 27th Round Monitoring Data, Tab B: Staffing. See ECF No. 21 6012-2 at 69. 22 • Other representations CDCR made to the Special Master and the Court regarding the adequacy of their current staff 23 psychiatry staffing levels. See, e.g., Joint Status Report RE: October 11, 2018 Status Conference (Sept. 15, 2018), ECF 24 No. 5922 at 4 (“CDCR expects that implementation of the proposed staffing plan will immediately lead to CDCR being 25 at or above the staffing levels required in the Court’s June 13, 26 27 28 1 2002 Order (ECF No. 1383), and therefore immediately bring CDCR into compliance with the October 10, 2017 Order 2 [ECF No. 5711 at 30].”).” 3 ECF No. 6147 at 79-80. Again, the court is in the process of reviewing all relevant parts of the 4 record to determine the scope and adequacy of necessary corrections. 5 iii. Findings 6 Taken together, all of the information in the record makes clear that psychiatry 7 supervisors carry a significantly higher caseload than is contemplated by the 2009 Staffing Plan 8 governing the remedy in this action. Defendants contend that the first analysis performed by Ms. 9 Ponciano was not intended to show how much supervisor time was required, but, instead, to 10 determine how much clinical time was necessary in the field, 10/22/19 RT at 422:14-25, but this 11 argument misses the relevant point. Ms. Ponciano’s first analysis, conducted to support the ill- 12 fated 2018 staffing proposal, masked the time supervisors spend providing line care and yielded 13 numbers that overstated appointment timeliness compliance. At hearing, she testified to a second 14 analysis she conducted subsequently, which showed that if supervisor contacts were removed 15 from timely CCCMS contacts, the report would have showed CCCMS patients being seen on 16 average .98 times every 90 days, rather than 1.07 times every 90 days. 10/15/19 RT at 137:21- 17 139:6. The latter analysis was not shared with the court or the Special Master before these 18 proceedings. Ms. Ponciano also testified that discussions with the Special Master about CDCR’s 19 use of psychiatric supervisors to perform line psychiatrist clinical duties have not begun but are 20 planned for the “near future.” 10/15/09 RT at 139:14-23. 21 Dr. Golding tried, apparently unsuccessfully, to surface the issue of supervisors 22 serving as line staff in CDCR meetings he attended as a representative for psychiatry. See, e.g., 23 10/15/19 RT at 54:5-20. While Dr. Golding and Dr. Kuich disagree on the exact percentage of 24 time supervisors have spent providing line care, with Dr. Golding estimating fifty percent and Dr. 25 Kuich estimating from thirty-three to fifty percent, the difference is not material here. Regardless 26 of which range the court credits, supervisors have clinical responsibilities far in excess of those 27 contemplated in the 2009 Staffing Plan and defendants misleadingly withheld this information in 28 1 an effort to make compliance numbers look better and to support significant reductions in 2 psychiatrist staffing levels. 3 Here the specific questions posed for hearing on this issue are why defendants did 4 not disclose in their 2018 Staffing Proposal whether, and to what extent, the reporting of data 5 related to average frequency of patient contacts did not disclose the use of supervisory 6 psychiatrists to complete caseload contacts with patients; and to what extent defendants 7 knowingly relied on active participation of supervisory psychiatrists in performing the duties of 8 line psychiatrists, both in defendants’ 2018 Staffing Proposal and in supporting their 9 representation that, if adopted, the 2018 Staffing Proposal would bring defendants into 10 compliance with the October 2017 staffing order? The answers are found in the actions of critical 11 players including Ms. Ponciano, in an environment of pervasive bureaucratic dysfunction as the 12 hearing here revealed. Defendants failed either to consult key headquarters psychiatrists or to 13 heed the clearly relevant information those psychiatrists attempted to provide concerning the 14 overuse of supervising psychiatrists in performing clinical duties. Defendants thus failed to 15 acknowledge the many negative consequences of the failure to either understand the extent of this 16 overuse or its ramifications for the field. Dr. Golding testified that at one point he was even 17 instructed to stop collecting institutional data on the extent to which supervising psychiatrists 18 were performing line duties. This instruction appears to have come at a time in 2018, when 19 defendants were under a court order to come into compliance with their Staffing Plan and the 20 court-ordered vacancy rate and when they were engaged in their misguided attempt to artificially 21 reduce the number of psychiatrists required to deliver constitutionally adequate mental health care 22 to the plaintiff class. 23 3. Overall Summary 24 All of the foregoing compels the conclusion that two of the issues discussed above, 25 the change in the EOP timeline business rule and the failure to properly quantify and identify the 26 extent to which supervising psychiatrists perform the duties of line staff psychiatrists, involved 27 the knowing presentation of misleading information to the court. With respect to the 28 Appointments Seen As Scheduled indicator, the court finds no knowing presentation of 1 misleading information but, instead, a public-facing error in the descriptor that should have been 2 caught sooner and that caused misunderstanding of the nature of the information presented. 3 Taken together with defendants’ admissions prior to hearing, defendants have 4 knowingly presented misleading information to the court in numerous areas critical to the remedy 5 in this case and measuring compliance with that remedy. 6 C. Other Concerns Identified Through Hearing 7 1. Marginalization of Psychiatry 8 On a broader level, the record created through the evidentiary hearing 9 demonstrates a marginalization of psychiatry that impedes defendants’ ability to achieve full 10 compliance with the constitutional requirements embodied in the court-approved remedy. 11 Dr. Kuich’s testimony explains the pressures and disincentives created by reliance 12 on automation and electronic data: Psychiatrists are being made to practice in an environment 13 that, among other things, “causes data to have to be massaged in certain ways to allow 14 information to be more presentable to say we don’t need psychiatrists so we can get out of the 15 lawsuit.” Kuich Dep. at 162:22-25. “And the more you automate this process to make sure that 16 compliance happens, the more you take control out of the clinician to be able to determine what’s 17 clinically relevant for the patient.” Id. at 167:14-18. 18 In critical policy decisions affecting this case, psychiatry’s ability to provide 19 substantive input also was severely constrained. As noted above, in preparing the 2018 staffing 20 proposal, Deputy Director Tebrock declined to provide a copy of the proposal to Dr. Golding 21 before it was finalized, and instead only read bullet points to him and then asked him to sign off. 22 This process for incorporating the views of a psychiatric professional, given the stakes, is 23 completely inadequate. Moreover, in addition to not being fully involved in discussions and 24 development of the 2018 staffing proposal, Dr. Golding testified he was told to wait to talk about 25 his staffing concerns until after that proposal was to have been filed with the court. 10/15/19 RT 26 at 27:2-29:22. 27 Non-psychiatrist members of the CDCR Mental Health management team also 28 asked Dr. Golding and his team to stop their monthly tracking of staffing at various institutions, at 1 a time when the team was tracking information CDCR officially said could not be tracked. Dr. 2 Kuich’s access to data compiled by Ms. Ponciano and her team was extremely limited. See Kuich 3 Dep. at 38:24-39:11. And Ms. Ponciano pulled Dr. Kuich out of one meeting for “about five 4 minutes” to run some numbers by him for providing on-call services through telepsychiatry 5 without giving him context, full information or time to evaluate the information she was putting 6 together to support the staffing proposal. Id. at 65:3-21; 68:21-70:6. This exchange too is not the 7 kind of meaningful discussion required under the circumstances, even if it enabled Ms. Ponciano 8 to say honestly she had talked with D. Kuich. While Ms. Ponciano came across as credible in her 9 testimony, she is an administrator who oversees operations and labor negotiations, who was 10 tasked with coming up with the number of psychiatrists to hire and to cut. She did not have the 11 full knowledge base to develop proposals on her own that would satisfy the requirements of this 12 case. 13 The headquarters environment described by Dr. Golding, led by former Deputy 14 Director Tebrock, is also concerning. Dr. Golding had the impression, which he testified to 15 credibly, that he was not able to speak to the Special Master. 10/15/19 RT at 21:14-23. Dr. 16 Golding testified he now understands he can contact the Special Master directly as necessary. See 17 10/15/19 RT at 21:24-22:1. But his reasons for submitting his report to the Receiver instead of the 18 Special Master were clearly articulated, consistent with his sense that he was not supposed to 19 communicate with the Special Master directly; they also reflected his concern about reporting 20 issues up the Coleman chain of command. 10/15/19 RT at 40:14-41:3. Dr. Kuich described 21 multiple instances where he just gave up trying to report problems or make necessary changes, 22 because his voice was never heard. See, Kuich Dep. at, e.g., 163:14-25. 23 The actions reviewed above run counter to a key principle articulated in this case 24 since the very beginning: “In order to provide inmates with access to constitutionally adequate 25 mental health care, defendants must employ mental health staff in ‘sufficient numbers to identify 26 and treat, in an individualized manner, those treatable inmates suffering from serious mental 27 disorders.’” Coleman v. Wilson, 912 F.Supp. at 1306 (internal citation omitted). Psychiatrists are 28 critical to appropriate mental health staffing, given that they are medical doctors bound by the 1 Hippocratic Oath See Kuich Dep. at 33:8-9 (“Psychiatrists as physicians do have the Hippocratic 2 Oath to do the best we can for our patients.”). This does not mean psychiatrists must always 3 prevail in internal policy- and decision-making processes. But they must be meaningfully 4 consulted; their professional views must be heard, considered and accounted for. Defendants’ 5 marginalization of psychiatry and their clumsiness in the process reflects a significant lack of 6 good judgment and bureaucratic dysfunction that, if allowed to continue, presents a major 7 obstacle to successful remediation in this action. 8 2. Boundaries Between Plata and Coleman 9 While there are areas of overlap between the Plata class action and this one, the 10 two cases are distinct and it is clear defendants were not policing the boundaries between the two 11 to protect and advance the remedies required in this case. 12 For example, the Appointments Seen as Scheduled indicator, developed by the 13 Plata Receiver, was simply adopted by CDCR Mental Health staff without any tailoring, as Dr. 14 Leidner testified. More generally, the Receiver’s team is making changes to healthcare business 15 rules that affect mental healthcare indicators, and it is the Receiver’s team running validation 16 processes to check that code. See, e.g., 10/16/19 RT at 269:17-270:2. It appears defendants have 17 tasked no one with a systemic review of changes to business rules to ensure compatibility with 18 this Coleman case. Regardless of how the current practices have developed, all practices and 19 procedures related to Coleman data collection and reporting must be made fully transparent 20 immediately. 21 Additionally, defendants’ Mental Health quality management team was heavily 22 involved in the Plata Receiver’s development of the EHRS. As the record developed through the 23 evidentiary hearing disclosed, many of psychiatry’s requests for a solution to critical scheduling 24 problems linked to diagnosis and prescriptions have not been incorporated into EHRS. See Kuich 25 Dep. at 174:15-175:7 Psychiatry’s requests for changes to EHRS “languished and were not 26 addressed.” Id. at 146:7-10; see also id. at, e.g., 147:17-148:1. More broadly, EHRS is not 27 tailored, as far as the court can tell, to take account of specific mental health issues implicated by 28 this case. See, e.g., Golding Report, ECF No. 5988-1 at 71-75. A person entering data using 1 EHRS can self-select his or her own title, see 10/15/19 RT at 148:10-20, a feature developed, 2 according to Ms. Ponciano, to allow psychiatrists to change their title to supervisor in order to 3 prescribe nonformulary medication. Id. at 161:15-19. It also appears that the training of 4 psychiatrists, who defendants rely on for data entry, regarding the use of EHRS has been uneven 5 and incomplete. See Kuich Dep. at 48:1-4 (regular training was “made available” but not 6 mandatory); id. at 47:17-22 (training manual was “bare bones”, with refinements not transmitted 7 to line staff level); id. at 23:17-20 (supervising psychiatrists’ acting as line staff impaired the 8 needed “unobstructed time and undivided attention to train their psychiatrists in the ways of 9 EHRS.”). Defendants acknowledge a need for more training; they must act on this 10 acknowledgment and promptly initiate a robust training process to address all the deficiencies 11 identified through the hearing. 12 On a parallel track, this court will closely manage renewed coordination effort 13 involving the Special Master in this case and the Plata Receiver, with the presiding judges at the 14 table as appropriate. 15 In the meantime, as the court cautioned from the bench, no one should rush into 16 the breach to cement any new plan for improved data collection analysis and reporting, without 17 obtaining this court’s advance approval. 18 D. Reasons Defendants Knowingly Presented Misleading Information 19 In the final analysis, inexplicably, it is apparent defendants lost complete sight of 20 the reasons remediation is required here. Defendants adopted a laser focus in an effort to obtain 21 termination of court supervision, which lead to a stark “ends justify the means” approach. Their 22 litigation tactics have wholly missed the significance of the constitutional rights of the thousands 23 of mentally ill persons defendants have in their custody. 24 As the court said in its oral pronouncement following hearing, legal cases are not 25 just words on a piece of paper and a series of jousting matches. Almost all legal cases have hearts 26 and souls, as does this one in particular. This court’s predecessor, Judge Karlton, put his heart 27 and his soul into this case, as reflected in the care he paid and his orders which stand today. This 28 is a case that cries out for every single player to consult their hearts daily and keep their eyes 1 hourly on those souls who are the members of the plaintiff class: the seriously mentally ill 2 individuals housed behind bars in this state who have the absolute, undeniable right to 3 constitutionally adequate treatment and care. 4 The question of how and why defendants lost sight of this case’s touchstone is at 5 once complicated and straightforward. Timing played a role, with awareness of the schedule of 6 the Special Master’s monitoring rounds. The end of the prior Governor’s term does appear to 7 have contributed to a pressure cooker environment. While no evidence has emerged of anyone in 8 the Governor’s Office ever instructing any player to mislead the court, the Neutral Expert Report 9 does capture a telling interaction. In March 2017, Ms. Tebrock sent an email noting that the 10 Governor’s Office had asked for an explanation in more detail of what metrics could be used to 11 show that the care by psychiatry is adequate. See ECF No. 6147 (citing CDCR0016999). This 12 missive signaled an attention to data and a focus on compiling data to show that care was 13 adequate, with the court as the audience. In the same general time frame, Ms. Tebrock’s 14 explanation of the need for lawyers to wordsmith the court documents, as a reason for not 15 showing the staffing proposal to Dr. Golding, also exposes that “ends justifying the means” 16 approach, as opposed to one of engaging in responsible problem solving. 17 The push to get dashboards from red to green is another marker. As Dr. Kuich, as 18 someone who has left the department, explains: “[M]ental health felt that they were performing 19 very well in many areas, that they could police themselves with data, that they were a structure. 20 That they were sustainable. And the only piece that was the problem was that there weren't 21 enough psychiatrists. And so if there was some way to show that with fewer psychiatrists we were 22 meeting the metrics, that final block would tumble, and there would be no basis for the lawsuit.” 23 Kuich Dep. at 122:15-23. In approving the change from 30 to 45 days, Dr. Ceballos facilitated 24 dashboards turning to green overnight. A dashboard that’s green, makes it look as if a remedy is 25 complete. 26 In sum, litigation once again has trumped substantive compliance, a path 27 defendants have taken repeatedly. It is not for this court to tell a party how to litigate its case, if it 28 1 chooses litigation, believes it has that right and plays within bounds. The litigation efforts in this 2 case, however, have exacted a steep, steep price at the expense of the plaintiff class. 3 Despite defendants’ knowing presentation of misleading information to the court 4 and the Special Master, and their having lost sight of the remedial purposes of this action, there 5 are some hopeful signs. Dr. Toche has signaled that she has concrete plans going forward. She 6 appears to have an ability to listen and to hear what others are saying. The court expects that she 7 is thinking deeply about a proper response to plaintiffs’ counsel’s question about how she can 8 work to make clear to those who work for and with her that “CDCR has been found to have 9 violated the Constitution as to the mental health program and is under a remedial order supervised 10 by this court” and that “Coleman is not just a word” but signifies a federal court order, “upheld by 11 the United States Supreme Court[,] that governs a remedial process.” 10/16/19 RT at 359:12- 12 360:4. The court will direct that Dr. Toche provide a report on her answer to that question at its 13 next status conference with the parties in early 2020. 14 There also is a relatively new administration and with any new administration 15 comes the chance to turn over a new leaf. The Deputy Legal Affairs Secretary for Criminal 16 Justice in Governor Newsom’s office, Kelli Evans, has been present in the courtroom for the 17 evidentiary proceedings. She also has attended settlement discussions convened by another judge 18 of this court. Ms. Evans and her boss have an opportunity to step into the breach, to take the 19 lessons from what has occurred and move forward in a way that can bring this case to a proper 20 conclusion, if defendants can learn the lessons of their past mistakes, internalize the reasons 21 behind those mistakes and identify meaningful solutions. 22 The court will play its part by convening regular status conferences, resolving 23 disputes as necessary and guiding the Special Master as appropriate. 24 V. REMEDIES 25 These proceedings have made clear the need for appropriate remedies. As noted 26 above, defendants have been given an opportunity to fully cleanse and purge the record of 27 misleading information. To some extent, they have availed themselves of that opportunity, and 28 the court acknowledges those efforts. See, e.g., ECF Nos. 6302, 6330. Defendants have not, 1 however, come forward to provide their own cogent, believable, supported and complete 2 explanation as to why they presented misleading information. Rather, they have offered only 3 partial excuses that do not fully acknowledge the totality of the record, pointing to inadvertent 4 errors, absence of course correctors and vagueness in the Program Guide. See, e.g., 10/22/19 RT 5 at 420:10-423:8. Moreover, this is the second time in less than ten years that defendants have 6 embarked on a litigation strategy that delayed and frustrated compliance with staffing 7 requirements, see, e.g., Coleman v. Brown, 938 F.Supp.2d at 984-989 (discussing ongoing 8 significant staffing vacancies in order denying defendants’ motion to terminate this action), 9 giving the court great pause. Against that backdrop, in the absence of defendants’ full acceptance 10 of responsibility, the court has reached its own conclusions and any corresponding remedies must 11 address the court’s findings. 12 The parties are in apparent general agreement on the need for data certification. 13 As required by the court’s bench order, they have now presented their individual views on proper 14 approaches to such certification and that matter is submitted. See ECF Nos. 6383, 6384. 15 Prior to hearing, plaintiffs identified a series of remedies, and they have now filed 16 a brief setting forth their proposed remedies post-hearing, see ECF No. 6374, to which defendants 17 have responded, ECF No. 6388. The court is prepared to seriously consider plaintiffs’ proposed 18 remedies because fundamentally they are correct that this is the time to effect a sea change. This 19 court must ensure no court is called upon again in the future to consider whether and how 20 misleading information has been presented to it. 21 The remediation called for by these proceedings will allow a long-delayed return 22 to the big picture and the proper laser focus on quality of care for California’s seriously mentally 23 ill prison inmates. Nothing has prevented work on that overarching goal during these 24 proceedings, and it must be abundantly clear that focus on the quality of care for this class of 25 prisoners is what will guide defendants’ true relief from court oversight. 26 With respect to staffing in particular, ten years ago it was defendants themselves 27 who submitted a staffing plan to this court followed by a budget change proposal to the California 28 Legislature to “‘fully implement’” the staffing model described in that plan. Coleman v. Brown, 1 938 F.Supp.2d at 984 (quoting Ex. K to Kahn Decl., ECF No. 4325, at 93). The budget change 2 proposal described the critical flaws in defendants’ prior staffing model and represented that the 3 2009 staffing plan identifies appropriate staffing levels to meet constitutional standards. Still 4 today, however, psychiatrist staffing vacancies hover at the 30 percent mark. The court has heard 5 many times the explanation of supply and demand, that there is insufficient supply, given the 6 remote locations where psychiatrists are needed, to meet the needs of the plaintiff class. But these 7 hearings have provided additional explanations and identified other contributors to the challenge 8 in identifying psychiatrists, including an uninviting dysfunctional workplace that does not value 9 the essential treatment perspectives that psychiatrists have to offer and creates an atmosphere 10 where morale is low. While a change from 30 to 45 days, as one example, might provide a 11 modicum of relief to an insufficient number of overburdened psychiatrists, here it was a 12 misguided, unthinking fix, applying a very tiny bandage to a festering wound while the infection 13 spreads throughout the body. 14 Defendants simply must come to terms with the substance of the staffing plan and 15 involve all key stakeholders in working with the proper focus to satisfy it. If, after addressing the 16 problems these hearings have exposed, defendants honestly believe that their staffing plan, 17 embodied in court orders, needs to be modified, they have the option, as they always have had, of 18 seeking a modification from the court. Any such request would need to be properly justified and 19 honestly supported, of course. In any event, defendants must acknowledge and account for the 20 substantial findings in this court’s October 11, 2017 order, describing the heavy burden that must 21 be met to support any increase in psychiatrists’ caseloads. 22 In closing, the court repeats its observation from the bench, that nothing prevents 23 the defendants coming forward with a more transformational option. In 2014, Judge Karlton 24 observed, “California is not alone in ‘criminalizing mental illness,’” adopting the perspective of 25 the sheriff of Cook County, Illinois quoted in a published article. Coleman v. Brown, 28 26 F.Supp.3d at 1073 n.5. “‘We’ve systematically shut down all of the mental health facilities, so 27 the mentally ill have nowhere else to go. [The prison system has] become the de facto mental 28 health hospital.’” Id. (internal citation omitted). 1 Since the time this court assumed responsibility for this case, the mental health 2 prison population numbers have risen. See ECF No. 5213 (August 29, 2014 Order reassigning 3 case to undersigned). Given its experience with the case so for, the court agrees “that many of the 4 problems giving rise to this suit and ongoing efforts at remediation arise from the inevitable 5 tensions created by the distinct needs of custody supervision and the distinct need for mental 6 healthcare.” Coleman v. Brown, 28 F.Supp.3d at 1073 n.5. If there is a transformational and 7 pragmatic alternative to the prison as de facto mental health hospital, as a way to address a root 8 contributor to the constitutional violation in this case, this court would entertain such a proposal. 9 Unless or until such a constructive reform is possible, the staffing remedy in this case calls for 10 defendants’ staffing plan in the context of the Program Guide to chart the way forward and be put 11 front and center. Relatedly, Coleman data collection and reporting must be fixed, and it must be 12 fixed to serve the policies and orders in this case, not the other way around. The policies and 13 orders must not be drained of meaning in an effort to squeeze a square peg into a round hole. And 14 the data must be fixed with all the key stakeholders at the table. It must be, as Dr. Toche appears 15 to recognize, checked and double checked. All with an eye toward allowing the defendants 16 ultimately, when they truly can, to accurately demonstrate to the court that the Constitution is 17 finally satisfied. 18 A remedial order will issue in the near future. A hearing will be set if the court 19 needs to hear more from the parties before that order issues. 20 IT IS SO ORDERED. 21 DATED: December 17, 2019. 22 23 24 25 26 27 28