Defendants have filed a request to vacate the evidentiary hearing set for August 17, 2011, set by this court in an order filed July 22, 2011. Plaintiffs oppose the request.
The purpose of the evidentiary hearing is for defendants to show cause why fifty beds at Coalinga State Hospital (Coalinga) designated for Colemanclass members, as well as any other vacant beds at the facility, cannot be filled with high-custody CDCR inmates, and for the court to take evidence on whether the alternative assessment process described by defendants in an earlier filing is appropriate to adequately identify Coleman class members in need of referral to inpatient care. Defendants seek a period of ninety days to work with the special master on a supplemental plan to reduce the wait list for inpatient mental health care and to present their alternative referral assessment process to the special master for evaluation. Defendants represent that if at the end of that ninety day period there is no agreement with the special master on a plan to further address the wait list issues the evidentiary hearing should be reset at a time at least thirty days thereafter.
As all parties to this action know, defendants were ordered over sixteen months ago to work with the special master to come up with a plan to reduce or eliminate the wait list for inpatient care and to better serve the treatment needs of inmates on the wait list. See Order filed March 31, 2010, at 3. The original time frame for development of the plan was ninety days. See id. In August 2010, the parties stipulated to a one hundred twenty day extension of time for development and filing of the plan, and the stipulation was approved by this court in an order filed August 4, 2010. Defendants filed their plan in November 24, 2010, almost eight months after the March 31, 2010 order was filed.
The first element of defendants' plan was an Extended Enhanced Outpatient Program Care Plan (EECP) "designed to provide treatment interventions targeted to the subgroup of EOP inmate-patients who exhibit serious and persistent mental illness, and whose level of functioning is insufficient to allow general population placement." Defendants' Plan Re: Intermediate Care Facility and Acute Inpatient Waitlists, filed November 24, 2010, at 4. At the time they filed their plan, defendants had identified 68 inmate-patients on the waitlist as meeting criteria for EECP placement. Id. at 5. The EECP was also part of defendants' plan to provide better mental health treatment for inmates on the waitlist. Id. at 23; but cf. Defendants' Response to Court's July 22, 2011 Order Re: EECP, filed August 4, 2011, at 3.
In objections filed February 25, 2011, plaintiffs contended, inter alia, that the EECP was not supported by sufficient staff or other resources to justify removing inmates from the waitlist for intermediate inpatient hospital care. Plaintiffs' Objections to Defendants' Plan to Address Waitlists for Inpatient Care and to Reduce Harms Inflicted on Class Members on Waitlists, filed February 25, 2011, at 9-11. By order filed April 28, 2011, defendants' plan was referred to the special master for review of its adequacy and whether, in light of objections raised by plaintiffs, any modifications to the plan should be required.
The special master filed his report and recommendations on June 13, 2011, noting the large role that the EECP played in defendants' wait list plan. See Special Master's Report on Defendants' Plan Re: Intermediate Care Facility and Acute Inpatient Wait Lists, filed June 13, 2011 (Report), at 26. In his first two recommendations, the special master recommended that no inmates placed in the EECP be removed from the wait list, and that he be ordered to monitor and review the EECP including staffing and to report to the court thereafter on whether inmates transferred to the EECP should be removed from the wait list. Id. at 54.
After eight months of work by defendants as well as the special master and his staff, and an additional forty-five days spent by the special master and his staff reviewing the EECP and other components of the wait list plan, defendants' response to the special master's recommendations was to withdraw the EECP from their wait list plan. The asserted reason for withdrawal of the EECP from the wait list plan was that the special master's first recommendation "defeats the purpose of the EECP" while the second recommendation for monitoring was "redundant." Defendants' Response and Objections to Special Master's Report on Defendants' Plan Re: Intermediate Care Facility and Acute Inpatient Wait Lists, filed July 1, 2011, at 4. The special master's recommendation that inmates transferred to the EECP remain on the waitlist was clearly intended as part of the process of evaluating the efficacy of the EECP as an alternative to inpatient hospital care. See Report at, e.g., 51-52. Thus, defendants' assertion that the special master's recommendation "defeats the purpose of the EECP" was unfounded.
Moreover, pursuant to court order, defendants have subsequently represented that they "still intend to provide EECP-type services to EOP inmate-patients with chronic mental illness whose symptoms have stabilized but whose level of functioning is insufficient to allow general population placement" and that they will continue with the "interim process to treat inmate-patients on the SVPP waitlist who can safely program at the four EECP institutions with existing EECP inmate-patients." Defendants' Response to Court's July 22, 2011 Order Re: Extended Enhanced Outpatient Program Care Plan, filed August 4, 2011, 2. To the extent that the EECP may serve as an alternative to inpatient hospital care for some members of the Coleman class, defendants should be tracking whether in fact the EECP adequately serves that function as part of their overall obligation to ensure that all members of the plaintiff class receive timely access to necessary mental health care.*fn1
In their opposition to defendants' request, plaintiffs inform the court that data provided by defendants shows that the wait list has grown to 171 inmate-patients as of July 29, 2011. Plaintiffs represent that there are 400 empty hospital beds at Coalinga and 73 empty hospital beds at Atascadero State Hospital (ASH). Plaintiffs' evidentiary hearing brief, filed with their opposition, is a powerful condemnation of defendants' failure to meet their constitutional obligations to some of the most seriously ill members of the plaintiff class. It also suggests non-compliance with orders of this court and defendants' own representations about efforts to address this crisis.
It appears from the record before the court that defendants have wasted a substantial amount of the special master's time and efforts, and their own, on a plan to reduce or eliminate the wait list that, as it stands, is insufficient. The opposition to the request at bar request suggests a failure to timely provide available solutions to the ongoing crisis of inadequate access to inpatient care and its sequelae. Against that backdrop, the court must now decide whether to grant defendants even more time to work with the special master on a supplemental plan.
If the request leads to a serious plan, it should be granted. If the result is more delay without solution it cannot be countenanced. As the court noted in its July 22, 2011 order, the serious problem with access to inpatient hospital care has plagued seriously mentally ill inmates under defendants' jurisdiction for over twenty years and is ongoing. The court meant what it said: further delay in resolution of this problem is unconscionable.
The remedial phase of this litigation has been guided by the court's core view that the obligation to comply with the Constitution rests with the defendants and that it is defendants who must choose and implement the mechanisms for meeting that obligation. But the court's patience is nearing its limit. The crisis of a lack of adequate access to inpatient care must be solved.
The special master has informed the court that within defendants' request there are some proposals that warrant further consideration prior to a hearing on the use of beds at Coalinga, including the possibility of having the Department of Mental Health provide additional clinical care at certain prison institutions, including California State Prison-Sacramento, to inmates on the wait list, and the ongoing review of the inmate classification system. See Request at 7. In addition, on July 20, 2011, defendants reported to the three judge court on their initial population reduction*fn2 , which raises the question of whether celled housing units at Salinas Valley State Prison or any other appropriate prison institution might be converted to hospital units to reduce the wait list. The special master also reports that the 45-bed hospital unit at California Institution for Women scheduled to begin patient admissions in January 2012 may be a unit that could house male inmates if sufficient inpatient beds were available to female inmates at Patton State Hospital. The evidence tendered by plaintiffs concerning Coalinga must also be given serious consideration, as must plaintiffs' suggestion that the wait list can be reduced through identification and transfer of inmate-patients, stabilized at the Salinas Valley Psychiatric Program (SVPP), to ASH or Coalinga.
Given the possibility that there are solutions to the wait list problem not reflected in defendants' current plan, and good cause appearing, defendants' request will be granted. The court will not, however, vacate the evidentiary hearing entirely. By this order, the hearing will be reset to December 14, 2011 at 10:00 a.m. The court will not entertain any request to continue the hearing further and will only entertain a request to vacate the hearing if such a request is accompanied by a supplemental plan to reduce the wait list that has been approved by the special master. Moreover, given the urgency of the matter at bar and the necessity of avoiding further wasteful delays, the court will direct defendants to file a status report every thirty days until the time of the evidentiary hearing. If after reviewing any status report the court finds that defendants are not moving in good faith and making adequate progress toward development of a substantive supplemental plan, the court will terminate the ninety day ...