(PC) Coleman v. Newsom ( 2023 )

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, ORDER 13 v. 14 | GAVIN NEWSOM, et al., 1S Defendants. 16 17 On October 18, 2023, the Special Master provided the parties with five proposed 18 | resolutions for pending data remediation disputes, as directed by this court in its October 11, 2023 19 | order modifying the data remediation dispute resolution process. See ECF No.7556-2 (original 20 | data remediation process); October 11, 2023 Order, ECF No. 8008 (order modifying process). 21 | On October 27, 2023, after receiving a short extension of time, defendants filed objections to all 22 | five proposed resolutions. October 24, 2023 Order, ECF No. 8028 (order granting extension); 23 | ECF Nos. 8036, 8037, 8039, 8040, and 8041 as supplemented by ECF No. 8057. On 24 | November 3, plaintiffs filed responses to four of the objections. ECF Nos. 8051 (responding to 25 | ECF No. 8039), 8052 (responding to ECF No. 8040), 8053 (responding to 8037), and 8054 26 | (responding to 8036). The court resolves the objections presented by ECF Nos. 8036 and 8037 in 27 | this order. To resolve the objections presented by ECF No. 8039, the court must first resolve 28 | certain threshold questions. The court in this order provides instructions for motion practice to 1 bring those questions before the court for resolution. The court defers resolution of the objections 2 presented by ECF Nos. 8040 and 8041 for a period of thirty days, as explained below. 3 I. BACKGROUND 4 In issuing this order, the court is guided by certain fundamentals, well-established in this 5 action. The data remediation process began in 2020 after the court found defendants had 6 knowingly presented misleading information to the court and the Special Master. See generally 7 Coleman v. Newsom, 424 F. Supp. 3d 925 (E. D. Cal. 2019). The remediation process currently is 8 ongoing, and the court anticipates substantial completion by the end of this year. ECF No. 8008 9 at 2.1 10 At the same time, defendants continue to develop their mental health quality management 11 system, also known as the Continuous Quality Improvement (CQI) process. See generally 12 December 17, 2020 Order, ECF No. 6996. An adequate quality management system is a required 13 part of the remedy in this action. See id. at 2 (citing Coleman v. Wilson, 912 F. Supp. 1282, 1308 14 (E. D. Cal. 1995)). “Quality assurance and quality improvement are components of an adequate 15 quality management system: quality assurance focuses on quantification of system performance, 16 while quality improvement focuses on the quality of that same system’s performance.” ECF 17 No. 6996 at 2 (citing ECF No. 4205 at 74-75); see also May 24, 2023 Order, ECF No. 7847, at 2 18 (quoting August 30, 2012 Order, ECF No. 4232, at 5, for proposition improved quality 19 improvement process will enable defendants to “address issues with the quality of care that is 20 delivered”). 21 The continuous quality improvement tool (CQIT), which defendants will use to measure 22 and quantify “‘all degrees of compliance with monitored [remedial] requirements, from zero 23 percent to 100 percent’” is part of the larger mental health quality management system. See 24 generally ECF No. 6996.2 CQIT comprises numerous indicators that measure various 1 In this order citations to page numbers in documents filed in the Court’s Electronic Case Filing (ECF) system are to the page numbers assigned by the ECF system and located in the upper right-hand corner of the page. 2 The court more recently has recognized “a small group of key indicators that are not 1 components of the California Department of Corrections and Rehabilitation (CDCR) Mental 2 Health Services Delivery System (MHSDS). See id. at 4-5. The “key indicators” in CQIT are 3 “the functional equivalent of ‘benchmarks’ that. . . signify the material provisions” of the 4 remedial plans in this action “that must be durably implemented to a degree of compliance” to be 5 confirmed by the court at a later date. September 30, 2020 Order, ECF No. 6846, at 28. Other 6 CQIT indicators serve functions integral to full implementation and adequacy of defendants’ 7 mental health quality management system. See ECF No. 6996 at 5. 8 In July 2021, the court gave provisional approval to a preliminary list of CQIT key 9 indicators. See generally July 1, 2021 Order, ECF No. 7216 (approving list of key indicators 10 found at pages 21 through 26 of the Special Master’s May 6, 2021 Report on the [CQIT] 11 Indicators, ECF No. 7151). Because “[d]ata systems now play a critical role in monitoring 12 delivery of mental health care to the plaintiff class and the required custody remedies . . . 13 finalization of the list of CQIT key indicators ‘“is progressing jointly” with the ongoing data 14 remediation process.”’” ECF No. 7847 at 6 (quoting January 4, 2023 Order, ECF No. 7695, at 2) 15 (internal citation omitted). 16 In May 2022, then-CDCR Secretary Kathleen Allison confirmed “the staff assigned to 17 work on data remediation including its technical writers are sufficient in number and 18 qualifications to complete data remediation before December 2023” and “committed to ensuring 19 additional staff, as may be necessary, will be assigned to the project.” Allison Decl., ECF 20 No. 7556 at 3. Between May 2022 and October, resolution of data remediation disputes was 21 governed by a three-step process agreed to by the Special Master and then-Secretary Allison. Id. 22 at 3 and Ex. B. On October 11, 2023, with the December 2023 deadline to complete data 23 remediation approaching, the court modified the process “to ensure more timely dispute 24 resolution.” ECF No. 8008 at 1. 25 ///// indicators and either stakeholder agreement, or, alternatively, his proposal for how those indicators should be used in measuring compliance.” ECF No. 7847 at 5 n.5. The Special Master is to include information regarding measurement of this small group of indicators in his final report on CQIT key indicators. Id. 1 Overall, the remedial goals relevant to this order are a transparent and accurate data 2 reporting system, see generally Coleman v. Newsom, 424 F. Supp. 3d 925, and a sustainable 3 quality management system defendants will use to “‘achieve and maintain compliance’ with 4 constitutional requirements [and] transition. . . into self-monitoring and . . . eventual removal of 5 federal court oversight.’” ECF No. 7847 at 5 (quoting ECF No. 4323 at 4-5 (quoting ECF 6 No. 4205 at 65) (emphasis in original)). 7 With the foregoing in mind, the court turns to defendants’ pending objections to the 8 Special Master’s proposed resolution of the five pending data remediation disputes. 9 II. DISPUTES 10 A. AC5: Treatment Offered – Confidential Groups 11 1. Special Master’s Proposal 12 The Special Master recommends that the indicator identified as AC5 (Treatment Offered) 13 “be modified to include information on whether the primary clinician or psychiatrist led groups 14 were conducted in confidential settings in a drill down,3 including a summary statistic reporting 15 the percentage of groups documented as being conducted in a confidential setting.” ECF 16 No. 8036 at 9. This proposal addresses a substantive dispute between the parties over whether 17 group treatment led by primary clinicians or psychiatrists and offered to Enhanced Outpatient 18 Program (EOP) inmates must be held in a confidential setting to count toward the Program Guide 19 requirement that EOP inmate-patients must be offered “at least ‘ten hours per week of scheduled 20 structured therapeutic activities.’” Id. (quoting 2021 Program Guide Update, ECF No. 7331 at 21 59). The Special Master recommends collecting drill down data to understand the percentage of 22 offered groups led by primary clinicians or psychiatrists that are held in confidential settings with 23 no adjustment to the scoring for this indicator based on the information gleaned from the drill 24 down data. ECF No. 8036 at 9. 3 Drill downs allow users “to look for something on a computer or website by moving from general information to more detailed information.” See https://dictionary.cambridge.org/us/dictionary/english/drill-down. 1 2. Defendants’ Objections 2 Defendants raise the following objections to this proposed resolution: 3  The Program Guide does not require these groups to be held in confidential 4 settings and, therefore, they should not be required to track whether they are. ECF 5 No. 8036 at 2. 6  CDCR’s Electronic Health Records System (EHRS) cannot track the classification 7 of a staff member for groups that patients refuse to attend and, therefore, the data 8 will only track attended groups and result in significant undercounting. Id. 9 Relatedly, the classification of staff members who check inmates into and out of 10 groups may be different from that of the staff members who facilitate the group, 11 also leading to unreliable data. Id. 12  The Special Master does not currently exclude non-confidential groups from his 13 assessment of whether the weekly requirement is met in EOP units. Id. at 4. 14  Two other indicators “report on the adequacy of confidential treatment space,” and 15 adding this drill down data would make those two indicators “duplicative and 16 obsolete.” Id. at 4-5. 17  A bug recently has been discovered in EHRS “that can unintentionally lead to data 18 regarding group confidentiality not being saved in the system” and therefore 19 incomplete reporting. Id. at 6. 20 Finally, although defendants do not agree the information needs to be tracked, if the court 21 does require tracking, defendants propose a separate report that “provides data regarding whether 22 completed mental health groups were documented as confidential or not, and what classification 23 led those groups.” Id. According to defendants, this would avoid confusion caused by reporting 24 the same data as a drill down under the AC5 indicator. Id. 25 3. Plaintiffs’ Response 26 Plaintiffs raise the following in response to defendants’ objections. 27  The need for confidentiality in group treatment, though not express, can be 28 inferred from a number of provisions of the Program Guide. ECF No. 8054 at 3. 1  “Confidentiality in group treatment for EOP patients is critically important 2 because the Program Guide allows group treatment to serve as the required weekly 3 primary clinician contact every other week” and it is undisputed confidentiality is 4 required for the weekly clinical contacts. Id. 5  Defendants’ approach would eliminate any way to know whether CDCR provides 6 any hours of confidential structured therapeutic activity because the information 7 would not be tracked. Id. 8  The Special Master’s proposal aids in accurate and transparent data reporting. 9  The Special Master does monitor and report on confidentiality of group treatment 10 space, so his proposal does track his monitoring. Id. at 4. 11  Neither of the indicators cited by defendants collect the information that would be 12 collected under the Special Master’s proposal because one measures the 13 confidentiality of all group treatment appointments as a percentage of total group 14 treatment appointments, while the other reports on the percentage of group 15 treatment areas that have confidential space; neither focuses on how often 16 individual patients are offered confidential treatment and the Special Master’s 17 proposal would allow this information to be collected. Id. at 5. 18  Defendants must resolve the purported limitations on tracking the classification of 19 staff members who lead confidential groups to measure whether groups in short 20 and long-term restricted housing units are confidential. Id. 21  Whether or not this information is tracked in the EHRS, defendants “track in their 22 underlying database each of the elements necessary to implement the proposed 23 resolution: what group was offered to the patient, whether the group was 24 confidential, and which classification of staff member conducted the group.” Id. at 25 5. Defendants have not shown it would be burdensome to use the underlying 26 database for the proposed drill down information. 27  Defendants must fix the identified data bug for many other indicators. Id. at 6. 28 ///// 1 With respect to defendants’ proposed alternative, plaintiffs argue it would only measure 2 completed groups, not offered groups, contrary to the Program Guide requirement that EOP 3 patients be offered ten hours of group per week. Second, the proposal would miss capturing data 4 on the number of EOP inmates who refuse to attend nonconfidential groups. Id. at 7 (quoting 5 ECF No. 7074 at 497 (report from Special Master that several EOP inmates reported refusing to 6 attend group treatment held in a dayroom). 7 4. Discussion 8 The AC5 indicator is on the list of CQIT key indicators the court has provisionally 9 approved. ECF No. 7151 at 21.4 The indicator measures treatment offered as part of the group of 10 provisionally approved key indicators that measure access to care. Id. The Special Master’s 11 proposal arises from a dispute between the parties 12 as to whether group treatment led by primary clinicians and/or psychiatrists must be 13 conducted in a confidential setting in order to count toward the Program Guide 14 requirement to offer at least “ten hours per week of scheduled structured therapeutic 15 activities” to patients at the EOP level of care. 16 ECF No. 8036 at 9 (quoting 2021 Program Guide Update, ECF No. 7333-1 at 59). 17 In relevant part, the Program Guide requires EOP inmate-patients to have weekly clinical 18 contact with their primary clinicians “either individually or in group psychotherapy,” “individual 19 clinical contact at least every other week,” and “[t]en hours per week of scheduled structured 20 therapeutic activities.” ECF No. 7333-1 at 59. The list of treatment activities, which includes 21 both individual and group therapy, is wide-ranging. Id. at 59-62. Structured activities may be led 22 by primary clinicians, psychiatrists, or other mental health staff. See id. It is undisputed that the 23 Special Master counts group treatment provided in non-confidential settings toward the weekly 24 ten-hour requirement. See ECF No. 8036 at 2, 10. The precise dispute here is whether group 25 treatment led by a primary clinician or psychiatrist must be offered in a confidential setting in 26 order to count toward the Program Guide’s ten hour per week structured therapeutic activity. 27 ///// 4 All the disputes resolved by this order involve indicators in the group of approved key indicators that measure access to care (AC). See id. 1 The Special Master’s proposed resolution is entirely consistent with the purpose of the 2 data remediation process, the development and finalization of CQIT, and the development of an 3 adequate quality assurance process. His resolution allows data reports to capture the percentage 4 of time group activities led by primary clinicians and/or psychiatrists in EOP units are held in 5 confidential settings. The Program Guide requires EOP inmate-patients to have weekly clinical 6 contact with their primary clinician, ECF No. 7333-1 at 59, and that such clinical contacts must 7 be in a confidential setting unless the patient refuses to speak to the clinician or signs a form 8 refusing “to attend a confidential encounter.” Id. at 636-37. On a biweekly basis, meaning every 9 other week, that clinical contact can be in group psychotherapy; on alternating weeks the contact 10 must be individual clinical contact. Id. at 59. At a minimum, the proposed drill down data is 11 necessary to determine whether biweekly participation in group therapy satisfies the relevant 12 weekly clinical contact requirement. For this reason alone, the drill down data must be collected. 13 Collection of the drill down data also is required for finalization of CQIT. It is not 14 unsurprising that data remediation and finalization of CQIT would uncover the need for 15 clarification of certain core remedial requirements, as the substantive dispute underlying the 16 Special Master’s recommendation illustrates. Specifically, the dispute illuminates a need to 17 clarify whether a group therapeutic activity led by a primary clinician -- generally a psychologist 18 or social worker -- or a psychiatrist counts toward the weekly ten-hour requirement if it is not 19 held in a confidential setting. Ultimately, if the parties cannot agree on a resolution of this 20 dispute it will have to be resolved by the court as part of its overall assessment of what 21 constitutional compliance requires in this complex case. The court is not required to resolve that 22 issue to resolve defendants’ objections because, as noted, the data must be gathered at a minimum 23 to determine whether biweekly group therapy can count toward weekly clinical contact 24 requirements. Moreover, the Special Master’s proposed resolution does not impact the way this 25 indicator is scored; it ensures relevant data is available. 26 As noted above, accurate data collection is central to an adequate quality assurance 27 program. Consistent with the Program Guide, EOP inmate-patients must be offered at least ten 28 hours of structured therapeutic activity each week. Id. at 58. EOP inmate-patients who are 1 scheduled for less than ten hours per week must be reviewed regularly to determine whether they 2 require referral to a higher level of care; less than ten hours of structured therapeutic activity per 3 week can signal a clinical need for a higher level of care. See id. The drill down data the Special 4 Master recommends be collected tracks information necessary to an adequate quality 5 improvement process, namely, whether there are “problem areas” in the delivery of group 6 treatment and how those can be improved “to make [group treatment] more effective and 7 efficient.” ECF No. 4205 at 74. The Special Master has reported about the impacts of a lack of 8 confidentiality on patient participation in group therapy, see, e.g., ECF No. 8036 at 10 (citing 9 ECF No. 7715 at 196, 230, 237, 528), identifying the issue as a potential problem area for 10 delivery of adequate care to class members housed in EOP units. Defendants cannot know 11 whether, or to what extent, a lack of confidentiality in groups led by primary clinicians and/or 12 psychiatrists is an obstacle to attendance in such groups unless they collect the drill down data as 13 the Special Master recommends. 14 The technical objections raised by defendants do not support a different result. As noted, 15 the former CDCR Secretary represented the number of qualified staff required for timely 16 completion of the data remediation project would be available and assigned as needed to ensure 17 completion of the project before the end of this year. See Allison Decl., ECF No. 7556 at 3. If 18 defendants require additional staff and/or additional expertise to resolve technical issues, 19 consistent with former Secretary Allison’s representation, those staff must be assigned to the 20 project forthwith. 21 Finally, the court will not require development of defendants’ alternative proposal instead 22 of the Special Master’s proposal because the alternative proposal would measure only the 23 confidentiality of attended groups and not, more inclusively, offered groups that an inmate-patient 24 refuses. For the reasons explained in this section, the Special Master is correct this latter data 25 must be included as drill down data in this indicator. 26 5. Conclusion 27 For the foregoing reasons, the court will overrule defendants’ objections to the Special 28 Master’s proposal to modify the AC5 indicator to include drill-down information on whether 1 clinician-led groups were held in confidential settings and a summary percentage of confidential 2 groups. 3 B. AC5: Treatment Offered – Measuring “Core Groups” 4 1. Special Master’s Proposal 5 The Special Master recommends the documentation for AC5 also be modified to include 6 drill down information and a summary statistic reporting how many and what percentage of group 7 treatment hours counted toward the requirement to offer EOP inmate-patients ten hours weekly of 8 structured therapeutic activity are conducted by a psychiatrist or primary clinician, also known as 9 “core” groups, without changing the scoring for the AC5 indicators. ECF No. 8037 at 9. 10 2. Defendants’ Objections 11  The Program Guide does not define or refer to “core” groups, nor does it 12 distinguish groups led by primary clinicians or psychiatrists from other treatment 13 activities. ECF No. 8037 at 2. 14  Because CQIT “key indicators” are supposed to “‘signify the material provisions 15 of the Program Guide and Compendium’” it “must logically follow” that CQIT 16 key indicators should not be designed to measure things not required by the 17 Program Guide. Id. at 3 (quoting ECF No. 7216 at 4). 18  The Special Master has not historically monitored this issue, so defendants should 19 not be required to track it. 20  This measurement “fails to align with the mental health needs of patients and 21 overlooks the flexibility required to provide appropriate treatment.” ECF 22 No. 8037 at 3. It could lead to overemphasis on the need for groups led by 23 primary clinicians or psychiatrists and risks “erroneous assumptions about the 24 clinical relevance of these groups to individual patient treatment plans.” Id. at 4. 25  The drill down data would be subject to the same limitations on accuracy posed by 26 the Special Master’s proposal for AC5-Treatment Options. 27 If the court does require additional data and reporting in this area, defendants propose a 28 summary report “that shows the count of attended groups provided by the following 1 classifications: Primary clinician, psychiatrist, recreational therapists, and all other mental health 2 type providers.” Id. at 5. 3 3. Plaintiffs’ Response 4  Defendants’ assertion that the Program Guide does not mandate tracking groups 5 led by primary clinicians and psychiatrists is incorrect. The Program Guide 6 requires substantive clinical group as part of EOP inmate-patients’ weekly 7 structured therapeutic activity. ECF No. 8053 at 2 (citing ECF No. 7333-1 at 59- 8 62). Without tracking this information, it is not possible to tell whether an EOP 9 inmate-patients’ weekly structured therapeutic activity includes these groups. 10  Defendants also are incorrect in their assertion that the Special Master has not 11 tracked whether groups are led by primary clinicians and psychiatrists in his 12 monitoring. ECF No. 8053 at 3. 13  Defendants’ suggestion that the Special Master’s proposed resolution will interfere 14 with mental health treatment and impede flexibility in providing appropriate care 15 “is nonsensical.” Id. at 4. Nothing in the recommendation suggests groups led by 16 primary clinicians or psychiatrists are better than other groups. 17  Defendants’ claims of technical limitations are unsubstantiated and do not provide 18 a basis for rejecting the recommendation. Id. at 4-5. 19 Finally, defendants’ alternative proposal would measure only attended groups, not 20 completed groups. In addition, the report would include counts, rather than percentages, which 21 are not useful without more context.5 22 ///// 5 Plaintiffs also contend defendants’ alternative proposal “will inevitably report a larger percentage of confidential groups than would the Special Master’s recommendation” because patients are more likely to attend confidential groups. Id. at 5. It appears inclusion of this contention, which consists of two sentences identical to sentences in plaintiffs’ response to defendants’ objections to the Special Master’s proposal for the AC5—Treatment Groups – Confidential Groups, see ECF No. 8054 at 6-7, is inadvertent; the specific argument does not apply in the context of this dispute. 1 4. Discussion 2 The Special Master’s proposal arises from defendants’ rejection of plaintiffs’ proposal to 3 include in this indicator “a summary statistic reporting the percentage of groups conducted by 4 psychiatrists or primary clinicians.” ECF No. 8037 at 8. The principal reason given by the 5 Special Master for his recommendation is that he “has historically monitored and reported on the 6 challenges defendants have faced offering clinician led groups due to, for instance, staffing 7 shortages.” Id. at 9. Though this information has not been included in the data defendants have 8 provided to the Special Master about the treatment hours offered to EOP patients, his monitoring 9 teams “obtain information regarding clinician-led groups through chart reviews and patient and 10 staff interviews.” Id. 11 It is clear the Program Guide contemplates provision of groups to EOP inmate-patients 12 that provide substantive clinical treatment. See ECF No. 7333-1 at 59-62. Given the current 13 chronic and severe staffing shortages among primary clinician classifications, see, e.g., ECF 14 No. 7956 at 6, and the historical chronic and severe staffing shortages among psychiatrist 15 classifications, see, e.g., October 10, 2017 Order, ECF No. 5711, at 9,6 data that captures 16 defendants’ capacity to staff and offer groups led by clinicians is important to development of an 17 adequate quality management system. It also will capture, in a more efficient manner, the 18 information already monitored by the Special Master. 19 For the reasons explained in Section IIA(4), above, the technical objections raised by 20 defendants do not support a different result. As noted, the former CDCR Secretary represented 21 sufficient staff would be available for timely completion of the required data remediation. 22 Finally, the court will not require development of defendants’ alternative proposal instead 23 of the Special Master’s proposal because the alternative proposal would count only the number of 24 ///// 6 The record as a whole currently shows decreased vacancy rates among psychiatrists but significant shortfalls among psychologists and social workers. See, e.g., Joint List of Stipulated Facts, ECF No. 7956, at 6. As defense counsel acknowledged during recent staffing enforcement proceedings, compliance with staffing requirements in each classification has “varied over time.” Reporter’s Transcript of Hearing, ECF No. 8013, at 8. 1 groups led by specific classifications of mental health clinicians, which by itself would have only 2 limited, if any, utility for required quality improvement and quality assurance tasks. 3 5. Conclusion 4 For the foregoing reasons, the court will overrule defendants’ objections to the Special 5 Master’s proposal to modify the AC5 indicator to include drill-down information and a summary 6 statistic reporting how many and what percentage of group treatment hours counted toward the 7 requirement to offer EOP inmate-patients ten hours weekly of structured therapeutic activity are 8 conducted by a psychiatrist or primary clinician. 9 C. PLACEHOLDER—PIP—MAX CUSTODY REVIEW 10 The Special Master recommends creation of a new indicator to measure compliance with 11 CDCR’s policy to review maximum custody inmate-patients placed in PIPs. ECF No. 8039 at 10. 12 Defendants object to his recommendation on the ground that it violates terms of a stipulation and 13 order setting out a settlement agreement between the parties. Id. at 1-2, citing ECF Nos, 7392, 14 7456. 15 On February 7, 2022, the court referred to the Special Master the question of whether the 16 provisions of that settlement agreement “regarding TTMS . . . are, or should be, reflected in” the 17 list of CQIT key indicators. February 7, 2022 Order, ECF No. 7456, at 2. Defendants’ objections 18 are predicated in large part on their position that by its terms the settlement agreement excluded 19 its provisions from the Program Guide and, therefore, none of what is covered by that agreement 20 should be the subject of a CQIT key indicator. 21 To ensure a complete record on this question, the court will direct defendants to bring an 22 appropriate motion focusing for the court the question whether this policy should be included in 23 CQIT; the motion should be filed within fourteen days. Plaintiffs shall file a response to the 24 motion within fourteen days thereafter. The court may seek additional input from the Special 25 Master as necessary to resolve the motion. The court will defer resolution of this objection 26 pending resolution of defendants’ motion. 1 D. AC7.1 and AC7.4 – Timely Transfer to EOP and CCCMS [Correctional 2 Clinical Case Management System] – Suspending Events 3 1. Special Master’s Proposal 4 The Special Master proposes that the medical hold language be removed from the 5 documentation for these two indicators that covers suspending events and that transfers to 6 CCCMS and EOP settings that exceed timeframes required by the Program Guide be scored as 7 not meeting those requirements. ECF No. 8040 at 11. Defendants also should modify the 8 indicators to include drill down information regarding any reasons for such delayed transfers. Id. 9 2. Defendants’ Objections 10 Defendants present the following arguments in support of their objections. 11  The Special Master’s proposal creates a conflict with CDCR’s Health Care 12 Departmental Operations Policy, set out in the Health Care Departmental 13 Operations Policy (HCDOM), which “authorizes CDCR physicians to temporarily 14 hold a patient’s transfer due to an overriding medical concern.” Id. at 2. His 15 proposal is therefore “clearly erroneous.” Id. at 5. 16  Defendants contend they should not be “scored as non-compliant” or “penalized” 17 when their physicians exercise medical judgment and prioritize medical and 18 mental health needs. Id. at 2. 19  Departmental policy concerning medical holds can be “read harmoniously” with 20 Program Guide transfer timeline requirements. Id. 21  Data remediation should not be focused on policy disputes. Id. at 6. The court and 22 the Special Master should give deference to CDCR’s interpretation of its own 23 policies unless those “interpretations clearly exceed constitutional bounds.” Id. 24  The Special Master’s proposal does not “align with well-reasoned clinical 25 judgment.” Id. 26  The Special Master’s recommendation for drill down data is “technically 27 infeasible” because there are on average 885 inter-institution transfers per month 28 and the potential universe of reasons for delayed transfers is “extensive.” Id. at 7. 1 3. Plaintiffs’ Response 2 Plaintiffs respond to defendants’ objections as follows: 3  The Special Master’s proposal is grounded in the same analysis the court upheld 4 over defendants’ objections in the context of transfers to short term restricted 5 housing (STRH) and long-term restricted housing (LTRH). ECF No. 8052 at 2. 6 Defendants do not explain why that analysis is different in the context of transfers 7 to CCCMS and EOP units, nor do they address the court’s October 11, 2023 order, 8 ECF No. 8010, in any meaningful way. 9  Plaintiffs repeatedly have offered for the past year “to negotiate a policy change to 10 amend Program Guide transfer requirements to include a narrow medical hold 11 exception and present the proposed change to the Court, as the parties did in the 12 context of MHCB [Mental Health Crisis Bed] and PIP [Psychiatric Inpatient 13 Program] transfers.” Id. at 4. Defendants continuously have refused. Id. at 4-5. 14  Defendants raise for the first time that they have a practice of having mental health 15 transfers involving medical holds evaluated by multi-disciplinary treatment teams. 16 Id. at 5. The cited portion of the HCDOM requires only collaboration between 17 medical and mental health; it does not require medical practitioners to consider 18 mental health clinical input when making medical hold decisions, or to balance 19 medical and mental health needs; the court-ordered medical hold exceptions for 20 inpatient and MHCB transfers do contain these requirements. Id. Nor does the 21 cited portion of the HCDOM require CDCR to provide appropriate mental health 22 treatment while transfer is pending. Id. The cited portion of the HCDOM is not 23 part of the Program Guide nor a monitoring requirement in CQIT. The cited 24 portion of the HCDOM does not justify departure from these Program Guide 25 requirements. 26 4. Discussion 27 The Special Master explains that the stakeholders agreed to defer further consideration of 28 the dispute over whether medical holds should suspend timelines for transfer to CCCMS and EOP 1 units pending the court’s resolution of a similar dispute regarding transfer timelines to STRH and 2 LTRH units. ECF No. 8040 at 10. The court resolved the latter dispute in its order filed 3 October 11, 2023, ECF No. 8010. 4 The HCDOM provisions, raised for the first time here by defendants,7 are not incorporated 5 by reference or otherwise into the applicable provisions of the Program Guide, nor do the 6 HCDOM provisions reference the applicable provisions of the Program Guide. Compare 7 HCDOM, Health Care Transfer, 3.1.98 with ECF No. 7333-1 at, e.g., 17-19. The HCDOM 8 provisions are not comparable to the court-approved medical exceptions for transfers to MHCBs 9 and inpatient care; the HCDOM provisions defendants cite do not even mention the relevant 10 Program Guide timelines, let alone require their suspension. Cf. ECF No. 8010 at 8. 11 To the extent there is a conflict between the HCDOM and the transfer timeline 12 requirements of the Program Guide, it is not created by the Special Master’s proposal. Given the 13 fact that defendants are subject to ongoing court supervision over the provision of both mental 14 health care and medical care, it is not unsurprising that a need is being identified to reconcile 15 particular processes in the two delivery systems during the data remediation process. These 16 disputes must be worked through in the well-established processes for such conflict resolution, 17 including meaningful meet and confers supervised by the Special Master and, as necessary in 18 coordination meetings with the Plata9 Receiver. See, e.g., May 8, 2020 Order, ECF No. 6661, at 19 8-9 (describing coordination process established more than fifteen years ago to “‘avoid any 20 surprises in the remedial proceedings in either case’”). 21 Moreover, defendants’ attempt to transform the identified conflict as presenting them with 22 “an unnecessary Catch-22” is an overstatement at best. The Eighth Amendment requires 7 All parties are reminded that they must “take all steps necessary to ensure that persons with full decision-making authority and required subject matter expertise are at the [Business Rules and Methodology Review] (BRMR) meetings” during which data remediation disputes are discussed. ECF No. 8008 at 2. Implied in this requirement is the corollary that all material and arguments relevant to data remediation must be presented at these meetings so that they are presented to the Special Master before he submits a recommended resolution to the court. 8 Available at https://cchcs.ca.gov/wpcontent/uploads/sites/60/HC/HCDOM-ch03- art1.9.pdf. 9 Plata v. Newsom, Case No. 01-1351-JST (N. D. Cal.). 1 defendants to provide constitutionally adequate medical and mental health care. As a 2 consequence, when inmate-patients have need for both medical and mental health care, 3 defendants must develop and implement policies that balance potentially competing medical and 4 mental health needs appropriately. It does not mean defendants always must “yield CCCMS and 5 EOP transfers to medical holds,” ECF No. 8040 at 5, nor does it mean CDCR must transfer 6 inmate-patients to CCCMS or EOP units within Program Guide timelines notwithstanding 7 medical conditions. In short, for defendants to comply with the Eighth Amendment this policy 8 conflict, identified during the data remediation process, must be resolved. 9 The Special Master’s proposed resolution is consistent with this court’s reasoning in its 10 October 11, 2023 order resolving a dispute the parties all agreed was analogous to the present 11 dispute. The proposal also is entirely within the confines of this action, which also is appropriate 12 given the Special Master’s role. However, for the reasons explained in this order, this is an 13 instance where medical policy and mental health policy must be reconciled. For this reason, the 14 court will defer further consideration of the Special Master’s proposed resolution for suspending 15 events in indicators AC7.1 and AC7.4 for a period of thirty days. During that period, the parties 16 shall take all steps necessary to meet and confer under the supervision of the Special Master to 17 develop proposed exceptions to the Program Guide timelines for transfer to CCCMS and EOP 18 levels of care that comport with other court-approved exceptions to Program Guide transfer 19 timelines and avoid unnecessary conflict with relevant provisions of the HCDOM. The court will 20 consider a request for extension of time to complete this task only if the Special Master 21 determines more time is required to complete the required meet and confer or the Special Master 22 deems it necessary to resolve the conflict through the established process for coordination 23 between this action and Plata.10 10 This is the second time the medical hold exception has impacted the data remediation process requiring court intervention. Should the medical hold exception be the subject of a dispute at any further point in the data remediation process, the Special Master shall require a full and unconditional meet and confer of the parties to reconcile potential conflicts between this provision of the HCDOM and Program Guide requirements. In the event this meet and confer is required, the Special Master may, as necessary, request an extension of the time within which he must submit a proposed written resolution of the dispute to the parties. See ECF No. 8008 at 2. 1 E. AC2.1: (Timely PC Contacts) – Definition of Weekly 2 1. Special Master’s Proposal 3 The Program Guide requires EOP inmate-patients have “weekly clinical contact with PC 4 [primary clinician] either individually or in group psychotherapy; individual clinical contact every 5 other week.” 2021 Program Guide Update, ECF No. 7333-1 at 59. The Special Master proposes 6 that “weekly” be defined in this indicator to require contacts to occur at least every seven days. 7 ECF No. 8057 at 4-59. 8 2. Defendants’ Objections 9 Defendants contend they have interpreted this Program Guide requirement, as well as the 10 same requirement for other weekly clinical contacts, to require contact every calendar week, 11 defined as Monday through Sunday, not every seven days. This is a “reasonable common sense 12 reading” of the requirement that the court should adopt as it is both practical and appropriately 13 prioritizes patient-based care. 14 Defendants do not dispute that the Special Master offered to engage in further discussions 15 regarding this dispute, but defendants refused, contending the Special Master “was unwilling to 16 propose any . . . flexible options in writing” and his current proposal does not include any 17 flexibility. ECF No. 8041 at 2-3. Defendants contend the Special Master’s citation to the court’s 18 December 19, 2019 order on whistleblower proceedings that involved how “monthly” would be 19 defined for Program Guide requirements is inappropriate and only designed “to inflame the 20 reader.” Id. at 6. Defendants point out the Special Master’s Twenty-Ninth Round Monitoring 21 Report includes at least one definition of “weekly” as “each week but sometimes with ten days 22 between appointments.” Id. at 7 (quoting ECF No. 7715 at 814.) Defendants contend their 23 proposed definition of weekly comports with the community standard of care, that a seven-day 24 definition will interfere with patients’ treatment, and that their definition avoids unintended 25 consequences caused by a rigid schedule. Id. at 8-10. Defendants also contend it will be hard to 26 operationalize a rigid seven-day rule. Id. at 10. 27 ///// 1 3. Plaintiffs’ Response 2 Plaintiffs did not file a response to defendants’ objections. In their position statement 3 submitted to the Special Master, they agreed with his proposal. See ECF No. 8057 at 4, 9. 4 4. Discussion 5 The Special Master explains the whistleblower proceedings on the report from 6 Dr. Michael Golding made clear the need for clarity in the definition of terms used in the Program 7 Guide to define units of time, such as monthly and weekly. ECF No. 8057 at 5. He therefore 8 began in his Twenty-Eighth Monitoring Round to explicitly note he interprets “weekly” to mean 9 “every seven days,” id. at 5-6 (quoting ECF No. 7074 at 558, 688; citing ECF No. 7715 at 552), 10 and he notes defendants did not object to the use of this definition, id. at 6. The Special Master 11 also explains he communicated to defendants his willingness to have further discussions about 12 this issue, but they declined. Id. 13 The proceedings on Dr. Golding’s whistleblower report are the reason for the ongoing 14 data remediation proceedings: the record made there is a cautionary tale about the critical 15 importance of transparency, clear communication, and common understanding of terms in the 16 collection and reporting of mental health data. The court reads the Special Master’s proposed 17 resolution for this dispute as placing it in an appropriate historical context with no intent to 18 inflame; nor is the proposal reasonably construed as inflammatory. The record suggests the data 19 remediation proceedings illuminated a difference in the interpretation of “weekly” as used by 20 defendants contrasted to the definition used by the Special Master in his monitoring. This is 21 precisely the type of difference best addressed in thorough discussions among all stakeholders. 22 The Special Master offered to continue discussions. Defendants declined because the 23 Special Master would not provide them with a written proposal. Defendants’ reason for declining 24 is based on a premise entirely inconsistent with the role of the Special Master in this case in 25 general and in the data remediation project in particular. The Special Master’s “principal 26 responsibilities . . . are to provide expert advice to defendants to ensure that their decisions 27 regarding the provision of mental health care to class members conforms to the requirements of 28 the federal constitution and to advise the court regarding assessment of defendants’ compliance 1 with their constitutional obligations.” December 11, 1995 Order of Reference, ECF No. 640, at 2 2 (citing Coleman v. Wilson, 912 F. Supp. at 1324 n.63). The Special Master is required to work 3 with defendants and is granted unlimited access to CDCR staff, documents, and facilities to 4 perform his duties. ECF No. 640 at 3, 5-7. Part of his job includes “work[ing] closely with 5 defendants” as they develop and implement mental health quality management systems. 6 February 18, 2020 Order, ECF No. 6467, at 4. The ongoing data remediation process is a critical 7 component of the larger quality management effort. See, e.g., id. at 2. 8 Fundamentally, the Special Master is not a party in this action; he is an arm of the court. 9 As such, defendants may not require the Special Master to provide them with “written proposals” 10 as a precondition for their participation in discussions the Special Master deems necessary to the 11 performance of his duties. See generally ECF No. 640. To the contrary, defendants are required 12 to cooperate fully in response to the Special Master’s requests and direction. 13 In the face of defendants’ refusal to continue discussions about this indicator, the Special 14 Master acted well within his authority and the scope of the data remediation project to make the 15 proposal currently before the court, which is consistent with relevant parts of his monitoring 16 practice. See ECF No. 7847 at 7 (each CQIT key indicator must track the Special Master’s 17 monitoring practice).11 Nonetheless, the Special Master has made clear his view that this issue 18 would benefit from further discussion. This dispute should not have to be resolved by, or brought 19 back to, the court if all parties return to discussions in a good faith effort to address all 20 stakeholder perspectives and practices and achieve a workable resolution. The court defers 21 ///// 11 Defendants acknowledge the Special Master’s references in his Twenty-Ninth Round Monitoring Report to primary clinician contacts “as occurring ‘within’ or ‘every’ seven days” but, as noted above, they cite to one review of a patient’s chart in the Twenty-Ninth Round Monitoring Report that includes a definition of weekly as “each week but sometimes within ten days between appointments.” See ECF No. 8041 at 7 (citing ECF No. 7715 at 814). They contend that “[w]ithout access to the Special Master’s data and his monitoring methodology [they] cannot ascertain whether the [Special Master’s] “references to ‘seven days’ fell within a calendar week.” ECF No. 8041 at 7. Again, the Special Master is not a party in this action; he is an arm of the court. Defendants’ contention here points only to the need for further focused discussion on this topic to ensure definitional clarity and congruence. 1 resolution of defendants’ objections in this respect for a period of thirty days to allow those 2 discussions to be completed. 3 F. Conclusion 4 In this order, the court resolves two of five objections to the Special Master’s proposals to 5 resolve disputes that have arisen during the ongoing data remediation process. The court defers 6 resolution of three other disputes pending further proceedings as required by this order. The data 7 remediation process should be nearing its conclusion, and to that end the parties must maintain a 8 proper focus to ensure fulfillment of the essential purposes of data remediation: to build a 9 transparent and accurate system for reporting mental health data in the larger context of 10 development of an adequate mental health quality management system. 11 In accordance with the above, IT IS HEREBY ORDERED that: 12 1. Defendants’ October 27, 2023 Objections to the Special Master’s Proposed Resolution 13 of Data Remediation Disputes: AC5: Treatment Offered – Measuring Confidential Groups, ECF 14 No. 8036, are OVERRULED. The Special Master’s proposed resolution, ECF No. 8036 at 9-10, 15 is APPROVED. 16 2. Defendants’ October 27, 2023 Objections to the Special Master’s Proposed Resolution 17 of Data Remediation Disputes: AC5: Treatment Offered – Measuring “Core Groups”, ECF 18 No. 8037, are OVERRULED. The Special Master’s proposed resolution, ECF No. 8037 at 9, is 19 APPROVED. 20 3. Within fourteen days from the date of this order defendants shall bring an appropriate 21 motion raising the question whether the PIP Max Custody Review Policy should be included in 22 CQIT. Plaintiffs shall file a response to the motion within fourteen days thereafter. The court 23 may, as necessary, seek additional input from the Special Master as necessary to resolve the 24 motion. Resolution of defendants’ October 27, 2023 Objections to the Special Master’s Proposed 25 Resolution of Data Remediation Dispute: Placeholder—PIP—Max Custody Review is 26 DEFERRED pending resolution of the defense motion required by this order. 27 4. Resolution of defendants’ October 27, 2023 Objections to the Special Master’s 28 Proposed Resolution of Data Remediation Dispute on AC7.1 (Timely Transfer to EOP) and 1 | AC7.4 (Timely Transfer to CCCMS) — Suspending Events is DEFERRED for a period of thirty 2 | days in accordance with the provisions of this order. The parties shall file a short joint statement 3 | informing the court of the status of this dispute at the end of the thirty-day period. 4 5. Resolution of defendants’ October 27, 2023 Objections to the Special Master’s 5 | October 18, 2023 Proposed Resolution of Data Remediation Dispute: AC2.1 (Timely PC 6 | Contacts) — Definition of “Weekly” is DEFERRED for a period of thirty days in accordance with 7 | the provisions of this order. The parties shall file a short joint statement informing the court of 8 | the status of this dispute at the end of the thirty-day period. 9 IT IS SO ORDERED. 10 | DATED: November 15, 2023. 11 CHIEF ED STATES DISTRICT JUDGE