(PC) Coleman v. Newsom ( 2022 )

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 12 Plaintiffs, ORDER 13 v. 14 | GAVIN NEWSOM, et al., 1S Defendants. 16 17 On October 14, 2022, as part of his comprehensive twenty-ninth round of monitoring in 18 | this action the Special Master filed a monitoring report on inpatient mental health care programs 19 | at the California Department of State Hospitals (DSH) (29B Report). ECF No. 7625. The 29B 20 | Report reviews inpatient programs for class members at Atascadero State Hospital (DSH- 21 | Atascadero), Coalinga State Hospital (DSH-Coalinga), and Patton State Hospital (DSH-Patton), 22 | and is based on review of documentation provided by defendants prior to the monitoring tours as 23 | well as two to three day visits at each of the three state hospitals during the period between 24 | February and March 2022. Jd. at 9, 15 n.5.! The Special Master makes one recommendation: 25 | that the court approve defendants’ March 11, 2021 DSH Inpatient Staffing Plan. /d. at 80. On ‘Tn this order, citations to page numbers in documents filed in the Court’s Electronic Case Filing (ECF) System are to the page number assigned by the ECF System and located in the upper right hand corner of the page. 1 October 24, 2022, defendants filed objections to the 29B Report. ECF No. 7637. Defendants 2 object to certain findings in the 29B Report, but they do not object to the Special Master’s 3 recommendation. Each objection is addressed in turn below. 4 I. LEGAL STANDARD 5 Paragraph C of the Order of Reference provides in relevant part: 6 [A]ny compliance report of the special master filed in accordance with paragraph 7 A(5) above shall be adopted as the findings of fact and conclusions of law of the 8 court unless, within ten days after being served with the filing of the report, either 9 side moves to object or modify the report. . . . The objecting party shall note each 10 particular finding or recommendation to which objection is made, shall provide 11 proposed alternative findings or recommendations, and may request a hearing before 12 the court. Pursuant to Fed. R. Civ. P. 53(e) (2), the court shall accept the special 13 master’s findings of fact unless they are clearly erroneous. 14 ECF No. 640 at 8. As required, the court adopts the Special Master’s findings of fact unless those 15 findings are “clearly erroneous.” Id. “A finding is ‘clearly erroneous’ when although there is 16 evidence to support it, the reviewing court on the entire evidence is left with the definite and firm 17 conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 18 395 (1948) (quoted in Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)). 19 II. ANALYSIS 20 Defendants first object to the description of past issues with access to inpatient care in 21 DSH programs set out in section IA of the 29B Report. Defendants contend the discussion in this 22 section largely ignores improvements in “access to inpatient care at DSH care over the past five 23 years,” relegating those to a footnote, and implies that “inadequate access to inpatient care is a 24 foregone conclusion” of the ongoing unidentified bed needs assessment (UNA). ECF No. 7637 25 at 2 (citing 29B Report at 15), 3. 26 These contentions are without merit. Read in its entirety, the history included in this 27 section is accurate and provides the context necessary to support the Special Master’s stated shift 28 in focus to sustaining the progress that defendants have made. See ECF No. 7625 at 10. 29 Specifically, the 29B Report does not minimize the progress defendants have made in class 30 member access to inpatient care in DSH programs. That progress is discussed through the lens of 1 history, with a focus on the vital importance of access to DSH programs for Coleman class 2 members, and the need to sustain that progress. See id.; see also, e.g., id. at 19-20 (“[w]hile 3 inadequate access to DSH programs has been persistent and well-documented in this case, for 4 patients who do receive care in DSH hospitals, the Special Master previously described DSH- 5 Atascadero and DSH-Coalinga as ‘constant performers for the Coleman class.’ ECF No. 7039 6 at 20.”). Nothing in the 29B Report suggests the outcome of the UNA is a “foregone 7 conclusion.” With reference to the historical context of the current UNA, the Special Master 8 reports, “[w]hile the low levels of referrals to inpatient care could reflect systemic problems 9 identifying and referring patients in need of higher levels of care, . . ., ‘[i]t is premature to reach 10 conclusions regarding the adequacy of access to inpatient care generally and DSH programs 11 specifically’ because the court-ordered UNA is ongoing. ECF No. 7555 at 64.” Id. at 23; see also 12 id. at 23 n.11 (UNA will provide all stakeholders with important information “‘sufficient to 13 determine whether the ‘red flags’ identified by the court [in a September 13, 2021 order] are 14 indeed the result of chronic and continuing inadequacies in defendants’ referral process . . . [or]. . 15 .that CDCR’s referral process is adequate and that there is no unmet need for inpatient care.’”). 16 Defendants also contend that a sentence “noting that ‘the 2016 Inpatient Care Report 17 emphasized that “(t)he Coleman court has repeatedly ordered DSH to utilize the intermediate care 18 beds at DSH-Atascadero to treat Coleman class members”’” creates the misimpression that DSH 19 is in violation of Coleman requirements for accepting referrals to DSH hospital programs. ECF 20 No. 7637 at 3 (quoting ECF No. 7625 at 32). This contention misses the mark. The challenged 21 statement is factually accurate and is properly read against the backdrop of what under-utilization 22 of DSH hospital beds has meant for class members historically. The Special Master is clear that 23 the results of the current UNA will be important to understanding whether that historical context 24 has shifted. And, again, the historical context provided in the 29B Report is essential guidance as 25 defendants move toward full implementation of a durable remedy in this case. 26 Defendants contend the Special Master did not adequately clarify “that almost all delays 27 in transfers [to DSH] occurred during pandemic surges, as a result of patient quarantines.” Id. 28 This too is not a fair characterization of the information the Special Master reports. In particular, 1 the Special Master reports the following facts: of the 1132 Coleman male patients who were 2 transferred to DSH programs, 101 were transferred to DSH-Atascadero and of that group, 88 3 patients, or 87 percent, were timely transferred within thirty days. See ECF No. 7625 at 22, 23, 4 34, 66, 87, 104. The Special Master also reports that “[d]uring the review period, the COVID-19 5 pandemic continued to impact access to inpatient care, though waitlists and transfer timelines to 6 DSH hospitals improved compared to the first year of the pandemic.” Id. at 22. The 29B Report 7 provides a neutral and accurate assessment of the impact of the COVID-19 pandemic on class 8 member access to inpatient care at DSH hospitals. 9 Finally, defendants request that the court instruct the Special Master “to amend the Report 10 to include the finding that DSH accepted all appropriate referrals during the monitoring period 11 and ensured timely transfers.” ECF No. 7637 at 4. The Order of Reference allows either party to 12 “move[ ] to reject or modify” any compliance report filed by the Special Master “within ten days 13 after being served with the filing of the report” and requires that the objecting party “note each 14 particular finding or recommendation to which objection is made” and “provide proposed 15 alternative findings or recommendations.” ECF No. 640 at 4. Defendants have provided no 16 evidence with their objections that supports the court’s either requiring the Special Master to 17 amend his 29B Report as requested, or to make the finding they request. 18 For all of these reasons, defendants’ first objection is overruled, and their request for 19 instructions to the Special Master is denied. 20 III. DSH’S CLINICAL POSITION ON INDIVIDUAL THERAPY 21 Defendants object to two sentences in the 29B Report: “DSH-Atascadero did not 22 typically provide individual treatment based on an institutional culture that appeared to view 23 individual treatment as not essential to providing adequate care” and “DSH-Atascadero only 24 regularly provided individual treatment to between five and ten percent of patients, reflecting a 25 hospital culture that did not believe that this treatment was necessary.” ECF No. 7637 at 4. 2 By this order the court corrects typographical errors in the 29B Report at pages 34 and 66 to reflect that the total number of male class members transferred to DSH programs was 113 (not 115), as the remainder of relevant findings in the report show that 101 male class members transferred to DSH-Atascadero and 12 transferred to DSH-Coalinga. 1 Defendants contend both that there is no support for these statements in the 29B Report, and that 2 the statements are “not consistent with evidence-based psychiatric treatment or psychological 3 treatment standards.” Id. They assert “DSH practitioners utilize individual treatment when 4 clinically indicated” and “group therapy only when clinicians believe treatment objectives will be 5 met through group therapy.” Id. at 4. Defendants also contend “[u]tilizing group therapy over 6 individual therapy after the application of sound clinical judgment is not a violation of [the] 7 Eighth Amendment or evidence of inadequate care,” and they request that the court’s order on the 8 29B Report “include the fact that there is no recognized standard that requires the use of 9 individual therapy as essential to providing adequate inpatient care in the DSH programs.” Id. 10 Defendants present no evidence to support the assertions in their objections. The court 11 notes the Special Master states that, in their response to his draft 29B Report, defendants noted 12 “DSH’s utilization of the group therapy model was required by the remediation agreed to during 13 litigation brought by the U.S. Department of Justice under the Civil Rights of Institutionalized 14 Persons Act (CRIPA).’” ECF No. 7625 at 17 & 40 n.28. Defendants have not included with their 15 objections any evidence of the requirements resulting from the CRIPA litigation. In the absence 16 of evidence to the contrary, the court cannot conclude the challenged findings are clearly 17 erroneous. 18 For this reason, the court overrules this objection and will adopt this part of the 19 29B Report in full. 20 IV. FINDINGS AS TO TWO INDIVIDUAL PATIENTS 21 A. Patient A (DSH-Coalinga) 22 Defendants object to the Special Master’s findings that Patient A’s treatment “was found 23 to be inadequate because a psychologist’s initial assessment recommended biweekly individual 24 therapy that was not provided” and due to “the ‘failure to modify the patient’s treatment plan in 25 response to ineffectiveness and the lack of group treatment provided.’” ECF No. 7637 at 4-5. 26 Defendants contend they objected to the draft 29B Report with evidence comprising DSH records 27 “show[ing] that DSH provided [Patient A] more than adequate treatment. . . .” Id. at 5. 28 ///// 1 The 29B Report contains the following summary of findings concerning Patient A: 2 Patient A did not receive adequate care at DSH-Coalinga. While the treatment team 3 developed appropriate treatment plans, the team did not modify treatment 4 responsive to evidence of ineffectiveness “and the patient’s worsening presentation 5 during admission.” Additionally, recommended biweekly individual therapy 6 sessions were not offered. 7 ECF No. 7625 at 43-44. The complete findings, set out in Appendix C2, are as follows: 8 Findings 9 The intermediate care provided to this patient was inadequate. Although treatment 10 plans were well written, they required modification in response to evidence of 11 ineffectiveness and the patient’s worsening presentation during admission. 12 Additionally, the psychologist’s initial assessment resulted in recommendations for 13 biweekly individual therapy to address trauma related symptoms; however, the 14 provider never followed through with offering individual therapy sessions despite 15 documenting ongoing trauma related distress throughout the current admission. 16 Even when treatment groups were limited or suspended during COVID-19 related 17 programming modifications, the individual therapy sessions were not offered to this 18 patient. 19 Id. at 164. Defendants objected to this finding in the draft 29B Report, as follows: 20 Patient A’s treatment was found to be inadequate because a psychologists’ initial 21 assessment recommended biweekly individual therapy which was not provided. (p. 22 147.) DSH’s records refute this assertion and show DSH provided more than 23 adequate treatment. Accordingly, this finding is not warranted and should be 24 revised. 25 Patient A, received meaningful and robust treatment, including individual therapy, 26 extensive group therapy, and specialized treatment such as EMDR. This treatment 27 was provided over 337 days, exceeding the average length of stay, and the patient is 28 set to discharge in September 2022. Often, the clinician’s initial assessment is a 29 snapshot in time, subject to change based on subsequent assessments and further 30 interactions where the treatment team continues to evaluate and learn about the 31 patient. It is not unusual for treatment modalities to change from the original clinical 32 thought at admission, up to the development of the master treatment plan (30 days) 33 and even later, if so dictated by circumstances. 34 Progress notes show that Patient A’s psychologist provided individual therapy on 35 the following dates: 2/23/22; 2/25/22; 3/16/22; 3/25/22; 3/29/22; 5/10/22; 5/13/22; 36 5/24/22; and 5/31/22. Patient A demonstrated outstanding attendance of 100% at 37 various treatment groups such as DBT Skills through Art Therapy; DBT: Emotional, 38 Regulation/Distress Tolerance Skills; DBT: Mindfulness Based Skills; Grief and 39 Loss; Managing Anger; Managing Mental Illness; Wrap made easy; Trauma Group; 40 Medication Education; and Leisure Games for Social Skills. The treatment team 41 provided specialized treatment to Patient A, including EMDR from November 8- 1 December 7, 2021, and ongoing weekly biofeedback therapy since March 3, 2022. 2 Individual therapy augmented EMDR by imparting CBT/DBT interventions to 3 address negative self-image/self-hatred, guilt, nightmares, cognitive distortions, and 4 catastrophizing. Although loss of EMDR therapy affected Patient A’s progress, 5 CBT/DBT interventions are ongoing. As part of discharge planning, the patient’s 6 psychologist performs weekly check-ins. 7 DSH’s internal Plan of Action also articulates that changes in treatment plans should 8 be well-documented. Accordingly, the Supervising Psychologist has already 9 followed up with the psychologists assigned to Unit 21 and has reinforced the 10 expectation that a change in treatment plan should be appropriately recorded. 11 ECF No. 7625-1 at 12-13. 12 The Special Master responded to defendants’ objection in full as follows: 13 Regarding DSH-Coalinga Patient A, DSH stated: “Patient A’s treatment was found 14 to be inadequate because a psychologist’s initial assessment recommended biweekly 15 individual therapy which was not provided.” Exhibit B at 5. Contrary to DSH’s 16 assertion, the Special Master’s expert did not determine the care provided to this 17 patient to be inadequate solely on the lack of individual treatment provided during 18 the review. The lack of individual treatment was one of several inadequacies 19 identified in this case review. The findings of inadequacy reflected the Special 20 Master’s expert’s findings after a thorough review of the patient’s health record, 21 which also evidenced failure to modify the patient’s treatment plan in response to 22 ineffectiveness and the lack of group treatment provided. See Appendix C2 at 156. 23 Accordingly, the Special Master declined to modify the findings from the case 24 review. 25 ECF No. 7625 at 17. 26 Defendants have not shown the Special Master’s challenged findings are “clearly 27 erroneous.” First, as the Special Master explains, see ECF No. 7625 at 17, the findings 28 concerning Patient A in the 29B Report were not based solely on the lack of the recommended 29 biweekly individual therapy; other inadequacies included the failure to modify Patient A’s 30 treatment plan in light of evidence that the plan had been ineffective and “the patient’s worsening 31 presentation during admission.” Id. at 164. Second, the findings in the 29B Report are based on 32 a monitoring visit that took place on February 20, 2022 and review of documents provided 33 through that date. See id. at 15 n.9 & 164. With one exception, defendants’ objections all cite to 34 treatment that post-dated the monitor’s visit and record review. Assuming without deciding that 1 defendants’ objections contain an accurate summary of Patient A’s medical records,3 those 2 records are not sufficient to demonstrate the Special Master’s findings concerning the adequacy 3 of inpatient provided to Patient A at DSH—Coalinga through February 20, 20224 are clearly 4 erroneous, and there is no basis in the record to support the court’s determining the adequacy of 5 treatment provided to Patient A during the entirety of his hospitalization at DSH-Coalinga. 6 This objection is overruled. 7 B. Patient E (DSH-Patton) 8 Defendants object to the Special Master’s finding that the treatment Patient E received at 9 DSH-Patton was inadequate, contending “[t]he conclusion of inadequate care is not warranted 10 due to the patient’s fluctuating suicide risk, nor does the medical record evince a paucity of 11 evidence-based interventions.” ECF No. 7637 at 5. The Special Master declined to change the 12 findings in the draft 29B Report because his “expert’s finding of inadequacy was not based solely 13 on the presence of fluctuating suicide risk documented in the patient’s record, but also the lack of 14 ‘evidence-based interventions such as Dialectical Behavioral Therapy or a behavioral plan to 15 reduce engaging in self-harm and dealing with frequent suicidal ideation.’” ECF No. 7625 at 17- 16 18. 17 Defendants have not presented the court with any evidence in support of this objection, 18 and, particularly, no evidence suggesting the Special Master’s findings regarding Patient E are 19 clearly erroneous. The court overrules this objection. 20 V. DATA ON CERTAIN GROUP THERAPY METRICS 21 The 29B Report includes a finding that class members “attended a weekly average of 5.38 22 hours of core groups at DSH-Atascadero.” ECF No. 7637 at 5 (citing 29B Report at 16). 23 Defendants object to the Special Master’s failure to include the treatment hours offered and 24 scheduled in the 29B Report; they contend “average scheduled group treatment hours were 9.28 25 hours and the average hours offered were 8.16 hours.” Id. at 5-6. 3 It does not appear defendants provided the cited progress notes to the Special Master, see Exhibit B, ECF No. 7625-1 at 8-13, and they are not included with defendants’ objections. 4 The summary of findings on Patient A does appear to include a reference to the individual therapy session that occurred on February 23, 2022. See ECF No. 7625 at 163. 1 In response to this request, the Special Master describes “an anomaly in the data DSH 2 provided in advance of the monitoring tour,” which suggested that “Coleman patients on average 3 attended significantly more hours of ‘core groups’ per week (12 hours per patient per week) than 4 were offered (7.1 hours per patient per week.).” ECF No. 7625 at 16. He reports that “[c]ore 5 groups offered to patients averaged 7.1 weekly hours with a range of 1.91 to 8.97 hours for all 6 Coleman patients.” Id. at 95; see also id. at 86. He also reports “[t]he hours of supplemental 7 group offered per Coleman patient per week was five hours with a range of 3.07 to 7.44 hours for 8 all Coleman patients.” Id. at 86. Defendants have not demonstrated these findings are clearly 9 erroneous, nor have they provided evidence that would support substituting or adding the findings 10 they request. 11 This objection is overruled. 12 VI. ADDITIONAL INFORMATION ON STAFFING 13 The 29B Report reflects a functional vacancy rate of 11 percent among psychiatrists at 14 DSH-Atascadero, including contractors. ECF No. 7625 at 85. Defendants object that this rate 15 should be reported as 10 percent. ECF No. 7625-1 at 9. The Special Master declined to make the 16 change defendants requested because “in documents provided to the monitor in advance of the 17 monitoring tour, DSH-Atascadero reported an 11 percent functional vacancy rate for psychiatry, 18 including contractors.” ECF No. 7625 at 15. Defendants have not presented any evidence in 19 support of their objection and thus there is no basis for a finding by this court that the Special 20 Master’s finding is clearly erroneous. 21 This objection is overruled. 22 VII. CONCLUSION 23 For the foregoing reasons, the Special Master’s 29B Monitoring Report and its 24 recommendation will be adopted in full. 25 In accordance with the above, IT IS HEREBY ORDERED that: 26 1. The Special Master’s October 24, 2022 29th Round Monitoring Report Part B, ECF 27 No. 7625, is ADOPTED in full; 28 ///// 1 2. The recommendation in the Special Master’s 29th Round Monitoring Report, Part B, 2 | ECF No. 7625, is ADOPTED in full; and 3 3. Defendant Department of State Hospital’s Inpatient Staffing Plan filed March 11, 4 | 2021, ECF No. 7078-1, is APPROVED. 5 | DATED: December 19, 2022. CHIEF ED STATES DISTRICT JUDGE nN