Coleman v. Newsom

• Decision Date: 11 April 2023
• Docket Number: 2:90-cv-0520 KJM DB P
• Parties: RALPH COLEMAN, et al., Plaintiffs, v. GAVIN NEWSOM, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

1

RALPH COLEMAN, et al., Plaintiffs, v. GAVIN NEWSOM, et al., Defendants.

No. 2:90-cv-0520 KJM DB P

United States District Court, E.D. California

April 11, 2023

ORDER

This matter is before the court on the Special Master's Report and Recommendation on a Final Proposed Telepsychiatry Policy ECF No. 7682, filed December 15, 2022 (hereafter Report). The parties have each filed a response to the Report, ECF Nos 7702 (defendants' response), 7703 (plaintiffs' response), and, with leave of court, ECF No. 7759 supplemental responses. ECF Nos. 7739 (plaintiffs), 7772 (defendants). As explained below, the court adopts the Report and approves as final the telepsychiatry policy it previously approved provisionally.

I. BACKGROUND

Telepsychiatry has been part of the remedial landscape in this action since its early days and has been used to provide mental health care in California's prisons since at least 1999. ECF No. 5564 at 14. Five and a half years ago, the court ordered formalization of the use of telepsychiatry into an addendum to the Program Guide, the remedial plan for delivery of mental health care in California's prisons. October 10, 2017 Order, ECF No. 5711, at 20-23.

Specifically, the court adopted findings and recommendations in a February 2017 report by the Special Master on the status of mental health staffing and implementation of defendants' staffing plan (Staffing Report). ECF No. 5564. The Special Master recommended “continued expansion” of defendants' telepsychiatry program, subject to several caveats including:

• “Telepsychiatry should serve as a supplement for on-site psychiatry, not as a substitute and should only be utilized when institutions are unable to recruit psychiatrists to work on-site.”

• The use of telepsychiatry should not relieve defendants of the obligation to continue to recruit full-time on-site psychiatrists.

• Telepsychiatry should not be used to allow on-site psychiatrists to “migrate to the comfort of remote off-site offices.”

• “[T]elepsychiatry should not replace on-site psychiatry.”

• Telepsychiatry is an appropriate option for inmate-patients at the Correctional Clinical Case Management System (CCCMS) level of care provided the telepsychiatrists work on-site at least twice a year and “more frequently if feasible.”

• Because the efficacy of telepsychiatry for Enhanced Outpatient Program (EOP) patients is unclear, a psychiatrist should be on-site at least quarterly to treat EOP inmates.

• Telepsychiatry is not appropriate for regular use at the Mental Health Crisis Bed (MHCB) level of care; it “should only be used as a last resort or in emergency situations when an on-site psychiatrist is not available.”

Id. at 16-17.^[1] The Special Master reported that “additional data would need to be examined before further expansion for EOP inmates could be endorsed” and that he would continue monitoring use of telepsychiatry at the EOP level of care. Id.

Defendants objected to the Special Master's recommended limitation on the use of telepsychiatry for inmates at EOP and higher levels of care. October 10, 2017 Order, ECF No. 5711 at 21. The court found “the evidence tendered by defendants is insufficient to demonstrate the use of telepsychiatry is appropriate for all Coleman class members at every level of care in the [Mental Health Services Delivery System] MHSDS” and “that the Special Master's monitoring of CDCR's use of telepsychiatry and the conclusions of his experts concerning its efficacy for class members based on that monitoring is more relevant to a determination of the appropriate use of telepsychiatry for members of the plaintiff class than” the evidence presented by defendants. Id. at 22-23. The court adopted the Special Master's recommendations as the basis for the telepsychiatry policy “subject to modification as appropriate as a result of ongoing monitoring of defendants' telepsychiatry program” and directed the policy to be completed and implemented within one year. Id. Defendants did not appeal that order.

In July 2018, the court reiterated the relevant holdings of the October 10, 2017 order, directed the Special Master to finalize the proposed telepsychiatry policy, circulate it to the parties “and obtain their responses.”^[2] July 3, 2018 Order, ECF No. 5850, at 4-7. On August 1, 2018, defendants appealed that order. ECF No. 5867. On August 2, 2018, the Special Master filed a proposed telepsychiatry policy addendum. ECF No. 5872. Defendants filed objections to the proposed addendum. ECF No. 5879. The court set an evidentiary hearing on the use of telepsychiatry for October 15, 2018. Coleman v. Newsom, 424 F.Supp.3d 925, 929 (E.D. Cal. 2019). Ten days before the hearing, the court received requests from both parties based on a whistleblower report from CDCR Chief Psychiatrist Dr. Michael Golding. Id. Five days later, on October 10, 2018, the court vacated the evidentiary hearing. Id. at 929-30. Thereafter, following additional meetings between the parties, in December 2018 the court referred the telepsychiatry issue and other issues to settlement conference. ECF No. 7682 at 19.

On December 24, 2019, the court of appeals dismissed defendants' appeal of the court's July 2018 order for lack of jurisdiction. Coleman v. Newsom, 789 Fed.Appx. 38 (9th Cir. 2019). In relevant part, the court of appeals held:

The telepsychiatry limitations articulated in the [district court's] order merely reiterate the same limitations enumerated in the district court's October 10, 2017 order, which Appellants chose not to appeal. Appellants argue that the language of the telepsychiatry limitations in the October 2017 order was permissive, so the mandatory language used in the July 2018 order imposed a new injunction. We find this argument unpersuasive. The October 2017 order was sufficiently clear that the telepsychiatry limitations were mandatory. Accordingly, the telepsychiatry limitations contained in the July 2018 order do not have the “practical effect” of granting an injunction.

Id. at 39 (citation omitted). The appellate court also held defendants could “obtain the relief they seek in a later appeal” pending the outcome of a trial on the question of “whether CDCR's use of telepsychiatry complies with the Eighth Amendment and, if it does, what limitations on telepsychiatry should apply.” Id. at 40. As noted above, the court vacated the evidentiary hearing on the use of telepsychiatry. Neither party requested the hearing be reset.

Following settlement discussions, on March 25, 2020, the parties filed a stipulation and proposed order for provisional approval of an agreed-upon telepsychiatry policy. ECF No. 6517. The stipulation reflected the parties' “agreement on the terms of CDCR's telepsychiatry policy” and that it would be a “provisional policy.” ECF No. 6539 at 2. The parties also agreed the “policy replaces all previous policies concerning CDCR's use of telepsychiatry, and that it will be CDCR's operative telepsychiatry policy during the provisional period, unless and until otherwise modified upon the agreement of the parties and the Special Master.” Id. The parties agreed the Special Master would monitor the policy for a period of eighteen months. Id. At the end of the eighteen month period, the parties agreed to “meet and confer with the assistance of the Special Master concerning a final telepsychiatry policy” with a focus on “necessary” alterations to the provisional policy. Following a process set out in the stipulation, absent an agreement, the Special Master was to file a recommendation as to a final telepsychiatry policy. Id. The Special Master has filed his recommendation in the Report now before the court.

II. PROVISIONALLY APPROVED POLICY

The provisionally approved policy tracks the essential requirements of the October 10, 2017 order, except that telepsychiatry may replace, rather than supplement, on-site psychiatry at the CCCMS level of care subject to conditions set out in the policy. Specifically,

• At the CCCMS level of care, telepsychiatry “may replace on-site psychiatry” as long as telepsychiatrists “visit their assigned institution within 30 days of assignment” and for “at least one full working day” twice a year, during which visits “the telepsychiatrist shall participate in the IDTT meet with necessary health care staff, and see patients face-to-face.” ECF No. 6539 at 7, 9.

• At the EOP level of care telepsychiatry may supplement but not replace on-site psychiatry. Id. at 7. On-site psychiatrists “shall remain the preferred method of care” for EOP programs. Id. The absence of on-site psychiatry in an EOP program for 30 consecutive calendar days is not consistent with the provisionally approved policy; in such event, notice must be provided to the Special Master and plaintiffs and a plan provided to address the staffing issue or information provided regarding its resolution. Id.

• “Telepsychiatry may not be used at the MHCB level of care except as a last resort in emergency situations when an on-site psychiatrist is not assigned to the program.” Id. at 7-8. Use of a telepsychiatrist in an MHCB unit for more than 14 consecutive calendar days is not consistent with the provisionally approved policy; in such event, notice must be provided to the Special Master and plaintiffs and a plan provided to address the staffing issue or information provided regarding its resolution. Id. at 8.

• “Telepsychiatry may not be used at the PIP level of care except as a last resort in emergency situations when an on-site psychiatrist is not assigned to the program.” Id. Use of a telepsychiatrist in a PIP unit for more than 30 consecutive calendar days is not consistent with the provisionally approved policy; in such event, notice must be provided to the Special

...