Full opinion text
OPINION AND ORDER PEREZ-GIMENEZ, District Judge. 1. On March 10, 1997, the court entered an order appointing Vincent M. Nathan, Esq., the former Court Monitor, as an expert witness pursuant to Rule 706, Fed. R. Ev., to prepare a report that would update the record in this case and document the state of compliance with the court’s orders. The court directed Mr. Nathan to submit a report on medical and mental health care. Mr. Nathan’s report concluded that “there is virtually no likelihood that the defendants, left to their own devices, will ever achieve compliance with the court’s orders in the areas of medical and mental health care or will ever provide services in these areas that comport with even the most basic constitutional requirements.” Report on Medical and Mental Health Care at 39 (filed April 14, 1997, admitted in evidence over objection as CT Exhibit 13). Accordingly, Mr. Nathan recommended that the court appoint “a receiver with ample authority to manage the Correctional Health Program free of all constraints of Commonwealth law.” Id. at 40. That report and recommendation set the stage for the instant proceedings. 2. The Court received motions from both the plaintiffs and the defendants opposing the court’s expert witness’s recommendation of a receiver. Motion to Submit Plaintiffs’ Specific Alternative to the Court’s Expert Witness’ Recommendation that a Receiver Be Appointed to Resolve the Correctional Health Program Crisis (Dkt.6559, May 19, 1997); Supplemental Motion on Plaintiffs’ Proposed Alternative to a Receivership for the Correctional Health Program (Dkt. 6590, June 26, 1997); Final Supplement to Plaintiffs’ Specific Alternative to the Court’s Expert Witness’ Recommendation that a Receiver Be Appointed to solve the Correctional Health Program Crisis (Plaintiffs’ Alternative) (Dkt.6615, August 8, 1997); Defendants’ Motion Requesting Additional Time to Address Plaintiffs’ Alternative Recommendation to the Expert Witness’ Report on the Correctional Health Program (Dkt.6565, May 30, 1997); Defendants’ Supplement to Their Correctional Health Program Crisis Proposal (Dkt.6627, August 18, 1997). The Court scheduled a hearing to commence August 18, 1997, to address the recommendation and the current state of medical and mental health care in the prison system. The Correctional Health Program is referred to as the Program or the CHP. After the hearing was concluded, the parties submitted a Plaintiff Class’ and Defendants’ Joint Proposal Concerning Correctional Health Program (September 26,1997). 3. At the hearing, 13 witnesses testified. In general, the witnesses were distinguished professionals knowledgeable about the Puer-to Rico prison system, and highly credible, with such exceptions as set out below. In addition to the testimony, close to seven hundred documentary exhibits were submitted by plaintiffs and stipulated by defendants including considerable statistical data concerning the operation of the Correctional Health Program. Additional documentary evidence was submitted on behalf of the Court’s Expert Witness, without objection by the parties. Some documents were admitted over objection. I. FINDINGS OF FACT 4. The defendants in this litigation have been subject to court orders to improve the delivery of health care services to inmates dating back to the court’s preliminary injunction of 1980. Feliciano v. Barcelo, 497 F.Supp. 14 (D.P.R.1980). The parties eventually stipulated to the Medical Care and Mental Health plans (together referred to below as the “Plans”). In 1990, the court approved the court monitor’s Amended 62nd Report, the Report Recommending Adoption of Revised Medical and Mental Health Plans, which included the Plans. The court’s order of approval also ordered defendants to implement the Plans to remedy almost a decade of non-compliance with the court’s orders to provide constitutionally required health care. As a result, the Administrator of Correction and the Secretary of Health agreed to transfer the responsibility for correctional health services to the Department of Health. In 1986, after farther hearings, the court found inter alia that the preliminary injunction had not been complied with. The court appointed Vincent M. Nathan, Esquire, as the Court Monitor, to monitor compliance with its orders, including those addressing medical and mental health care. Morales Feliciano v. Romero Barcelo, 672 F.Supp. 591 (D.P.R.1986). 5. In 1980, health care services within Puerto Rico’s prisons were virtually nonexistent. There was one psychiatrist for the entire system, which had custody at that time of approximately 3,000 inmates. Mentally ill patients at Bayamón 308 were housed in what was known as the “máxima de locos” (maximum for crazies), where they received virtually no attention and the distribution of medication was carried out by other inmates. There were three, perhaps four physicians to provide medical services to the entire AOC inmate population. There were no licensed pharmacists in the system. 6. In 1988, the Administration of Correction entered into an agreement with the Department of Health by which correctional health services were to be rendered by Department of Health personnel. By 1993, the program under which such services were provided was just beginning to develop an identity of its own and was designated the Correctional Health Program. At the same time, the services at the institutional level were severely disorganized and understaffed and still relied upon unlicenced personnel. The services were not integrated and each “track” of services — e.g., nursing, mental health, etc. — responded to its own directors at the central office level. There was only one licensed pharmacist for all of the island’s penal institutions. Medical records were disorganized and there was not even a rudimentary infectious disease control program. Quality improvement was very fragmented. Health education was done by a psychologist at the central level and was not being extended to the institutions. The administrative aspects of the program were being performed by a single secretary. 7. A 1990 report by the Court Monitor concluded, based on the assessments of two distinguished expert consultants, that “[a] number of conditions found and prohibited by the Court in 1980 persist throughout the correctional system, and the current medical and mental health delivery systems throughout the AOC endanger the lives and health of inmates and staff alike.” 100th Report of the Court Monitor — Report on Delivery of Medical and Mental Health Care (Dkt.2050, at 3, filed February 2,1990, confirmed by order of June 14, 1990, Dkt. 2268). This conclusion, and the experts’ findings, were not contested by the defendants and, indeed, came as no surprise. When the Court Monitor first introduced the consultants to the then Administrator of Corrections, Dra. Mercedes Otero de Ramos, she made clear her preference that the consultants not tell her what she already knew at the time — that systems for delivery of medical and mental health care to prisoners throughout Puerto Rico were in near total disarray. Rather, she requested that the consultants provide her with a plan containing proposed solutions to the problems that had been brought to her attention through prior evaluations and her own observations of the correctional system. Amended 62nd Report of the Court Monitor — Report Recommending Adoption of the Revised Medical Plan and Mental Health Plan at 3 (filed December 13,1989). 8.Both of the Court Monitor’s consultants conferred extensively with representatives of the Administration of Correction and the Department of Health in the course of their work and submitted initial proposed plans for providing adequate medical and mental health care. These became the subject of extensive and cooperative discussion and revision among the parties and the Court Monitor that led to the Medical Care Plan and the Mental Health Plan (“the Plans”) that were recommended to the court in the Amended 62nd Report. Neither party objected to any part of the Plans. On January 2, 1990, the court tentatively approved the Plans and directed the defendants to commence implementing them. Final approval was given by order dated October 23, 1990 (Dkt.2465), after the court completed the notice and review procedure required by Rule 23(e), Fed.R.Civ.P., which the court followed out of an abundance of caution. 9. Since their entry as orders, these Plans have been supplemented and modified by several further orders addressing certain medical and mental health care issues. See Order Approving Lambert King’s Recommendations, December 18, 1992 (Dkt.4156); Order Confirming 213th Report of the Court Monitor — Report Conveying Medical Consultant’s Findings of Site Visits Conducted April 25-28, 1992 and Appendix B of the Report, December 29, 1992 (Dkt.4166); Order amending § 58 of the Medical Care Plan, July 9, 1993 (Dkt.4537). At the hearing, the Correctional Health Care Coordinator praised the plans, and she was not alone in doing so. Goals of the Plans 10. The principal goals of the Correctional Health Program, are fourfold: (1) integration of health services throughout the large and complex institutional system under the jurisdiction of the Administration of Correction; (2) to provide services commensurate with contemporary standards of professional practice of medicine, with emphasis on preventive services to the entire inmate population; (3) to guarantee accessibility for all inmates to the full range of health services available, including hospitalization, emergency services, and subspecialty facilities and clinics; and (4) to provide health education to the inmate population and correctional staff to improve the level of understanding of sound health and prevention of disease. The services addressed by the Plans include, in addition to direct medical services, all the supporting services necessary to operate an integrated health care system, including, among others, health education, quality improvement, diets, medical records, and administrative support. These goals and services reflect contemporary standards for the provision of adequate health services generally, whether within the free community or within a correctional setting. The general community standards of providing integrated health care services are embodied as well in the standards promulgated by the Joint Commission on Accreditation of Health Care Organizations (the “Joint Commission”). The Health Care Executive Committee had thus proposed the adoption of the standards of the Joint Commission as the benchmark by which to evaluate correctional health services in Puerto Rico. 11. The court specifically finds that the four goals set out in the Plans are essential to any remedy for the elimination of the long-standing and present violation of plaintiffs’ federal constitutional rights. Of special importance is the integration of health care services throughout all of the institutions operated, directly or under contract, by the Administration of Correction. While the parties, or the Chief Health Care Coordinator, may from time to time request modifications of the Plans to keep abreast of health care developments or to enhance administrative and fiscal efficiency, any changes must be shown to further these goals. Historic Noncompliance with the Plans 12. Past and present defendants have not complied with the Plans, as documented in a series of motions and reports by the Court Monitor, as a result of which the court took a series of actions intended to facilitate compliance. 13. In the 202nd Report of the Court Monitor — HIV/AIDS Focused Study (filed July 28, 1992, confirmed August 18, 1992; Dkt. 3839), the monitor found extensive noncompliance with the Medical Plan’s requirements with respect to HIV care and concluded that defendants’ failure “places HIV-positive prisoner’s lives in peril.” Id. at 27, Finding 31. The court directed the defendants to implement the report’s recommendations. 14. In the 213th Report of the Court Monitor — Report Conveying Medical Consultant’s Findings of Site Visits Conducted April 18-25, 1992 (filed September 21, 1992; Appendix B filed October 27, 1992; confirmed December 28, 1992; Dkt. 3966), the monitor’s consultants documented noncompliance with the Plans’ requirements concerning intake screening, inadequately equipped medical facilities, inadequate staffing of facilities housing chronically ill patients, failure to provide medical diets, unavailability of correctional staff to escort inmates to medical appointments inside and outside the prison, etc. 15. A memorandum of August 12, 1993, addressed to the Department of Health officials reporting the most recent findings of the audits performed at seven prisons by the monitor’s medical consultants, the report was very critical of the very little progress achieved toward compliance with the Medical Plan. Office of the Court Monitor, Summary of the Morales Feliciano Litigation, January 11,1995 (Dkt.5532), at 193-94. 16. A June 8, 1993 Stipulation on the Rio Piedras Complex and Other Matters at 12 (Dkt.4477) described health care at the State Penitentiary as “fragmented, disjointed, thus lacking continuity of care.” 17. A similar pattern of noncomplianee with the Mental Health Plan was documented in a series of reports including, the Report of the Court Monitor — Report Pursuant to the Court’s Order of January h 1990 (filed March 16, 1990; confirmed June 13, 1990; Dkt. 2123) (finding acute mental health care at Annex 504 and Vega Alta grossly deficient); 151st Report of the Court Monitor— Report on Delivery of Mental Health Services at Vega Alta at 2 and § II (filed April 25, 1991; confirmed May 21, 1991; Dkt. 2822) (documenting dangerous conditions under which psychotic female inmates had been held, and defendants’ failure to remedy problem); 13fth Report of the Court Monitor— Report on the Delivery of Health Care Ser-. vices at Guerrero (filed December 7, 1990; confirmed February 4,1991; Dkt. 2545) (documenting failure to operate special treatment unit in compliance with Mental Health Plan and inadequate, sometimes inappropriate and dangerous, treatment); 168th Report of the Court Monitor — Report on Observations of Mentally III Inmates Housed in the Intensive Treatment Unit of the State Penitentiary (filed August 23,1991; confirmed October 30,1991; Dkt. 3139) (finding failure to screen inmates in Intensive Treatment Unit consistently with mental health plan and noting breakdowns of communication between AOC and the Department of Health (“DOH”) that adversely affected provision of care); 215th Report of the Court Monitor — Report on Defendants’ Progress Toward Compliance with Their Mental Health Plan (filed September 23, 1992; confirmed October 19, 1992; Dkt. 3969) (reporting comprehensive audit finding little progress toward compliance with Mental Health Plan). II. NEEDS OF THE INMATE POPULATION: HEALTH CONDITIONS 18.The inmate population in Puerto Rico has a disproportionate need for health services, which translates to a similar need for resourees-including time, money, equipment, and facilities — to address those health needs. Particularly there is an urgent need for careful planning based on rational budgeting, streamlined procedures, job security and reasonable compensation, adequate staffing (both health care and security personnel), transportation, quick and responsible contracting and acquisitions, and everything else that is needed to set up an organized health care system that provides services to human beings, albeit not the most fortunate human beings. The Commonwealth’s Secretary of the Treasury, who testified on behalf of the equitable defendants, and particularly on behalf of the Governor, repeatedly stated “That is unacceptable” when confronted with the obstacles placed in the way of the Correctional Health Program. No explanation was offered for the consistent policies and decisions by highly placed officials which have brought about the present debacle. 19. In general terms, a high percentage of the AOC inmate population has suffered from childhood neglect or abandonment, abuse, or drug abuse, and/or have previously been in juvenile institutions. Even though the average age of population is in the mid-thirties, there are a disproportionate number of chronic conditions. 20. The prison population in Puerto Rico suffers from a higher overall prevalence of chronic diseases than the general population. The prevalence in the prison population is 20.7 per 100 persons, while the rate in the general population is 12.75 per 100 males. The rate of mental health disorders in the prison population is approximately 30 percent, which is higher than the rate in the general population. The target population in terms of oral health in the prisons is 100 percent. The inmate population is at higher risk for infectious diseases than the general population, and a higher concentration of high-risk illnesses than the free community. The control of infectious diseases is more difficult in the inmate population, first, because inmates tend to be a higher risk population, and second, because of the close confinement of the population. Outbreaks of contagious diseases can more easily become uncontrollable. Based on an outreach performed by mental health staff in 1997, there are an estimated 674 inmates in the Puerto Rico prison system who require mental health care services but who are not receiving such services; of these, approximately 121 should be in an intermediate psychiatric care facility, 464 in ambulatory services, and 89 in the hospital. Approximately 70 percent of the total inmate population in Puerto Rico has a history of drug abuse. This population is a target for mental health services. 21. Approximately 1.4 percent of the total inmate population in Puerto Rico requires acute mental health care. “Acute” mental health care is that care provided to patients who are psychologically decompensated and can involve acute psychosis, severe depression with suicidal ideations, or drug or alcohol withdrawal. (Acute mental health care is provided in a hospital setting or infirmary for those with drug withdrawal symptoms.) 22. Approximately 1.9 percent of the total inmate population in Puerto Rico requires intermediate mental health care. “Intermediate” mental health care is care provided within a psychosocial residential facility. It is care provided to patients with chronic mental health problems who may need constant care at different levels. Within intermediate mental health units, patients are taught daily living skills, use of medication, and how to detect the onset of acute symptoms. Patients in intermediate facilities also are provided occupational and group therapy. 23. Approximately 27.2 percent of the total inmate population in Puerto Rico requires ambulatory mental health care. Ambulatory mental health services are outpatient services provided in the same setting and integrated with regular out-patient services. 24. Currently in the AOC system, the CHP has identified 131 patients with hepatitis A, 356 patients with HIV, 279 PPD + patients, 147 patients with AIDS, 198 patients with diabetes, 6 patients with active tuberculosis, 311 patients with high blood pressure, 106 patients with epilepsy, 4 with lupus, 46 with peptic ulcer disease, 4 with leukemia, 4 with chronic obstructive pulmonary disease, and 1 cancer patient. There also are 922 patients with chronic conditions in the privatized institutions. 25. One of the objectives of the Plans is the creation of an integrated health care system. An integrated system for the delivery of health care is necessary because it has a multiplying effect on the delivery of services. In an integrated system, services are delivered through interdisciplinary teams. An integrated system of health care delivery represents the standard of care in the community and comports with professional standards of care. An integrated system maximizes the benefits that patients receive from the services rendered by the CHP. It is more cost effective, allows patients to receive different levels of care, and is sounder from an administrative perspective. In an integrated system, all prisoners have available to them the same medical services. The CHP cannot achieve acceptable professional standards of care if any one component of an integrated health care systems is not present. As part of an integrated system of medical care, all of the different specialties — medical, mental, and dental care — must work together. If an integrated system of health services is available when an inmate enters the prison system, all health needs that the inmate may have can be identified, and all such needs can be addressed. 26. An integrated health system includes a system for health education. Health education is necessary to the prevention and promotion of health. Inmates with specific medical conditions require education concerning medication, attending appointments, how to determine when medical attention is required, etc. Health education also is important to enable people within the correctional setting to lower their risk of exposure to disease within the institutions. 27. In certain cases, it is necessary to provide unitary dosages of medication to inmates. Unitary dosage of medication is the individual presentation of each dose of medication to a patient, to ensure that the patient is taking the medication properly. Several types of medications call for unitary doses. For example, the medications used for HIV + and AIDS patients, for patients with a positive tuberculin test, or active tuberculosis, for patients with mental conditions who must receive psychopharmacological medication, patients who exhibit some kind of physical condition requiring controlled medication, and for epileptic patients. Unitary doses are served by nurses at various times during the day and are taken by the patient in front of the nurse and the custodial officer that accompanies the nurse. 28. Current standards call for placing inmates going through withdrawal symptoms under medical supervision for at least seven days. Failure to provide the necessary treatment can result in dehydration. In addition, withdrawal patients suffer from restlessness and changes in personality. They can be vulnerable and subject to mistreatment or sexual abuse by the general population. Withdrawal from alcoholic intoxication can be a life threatening process. ■ 29. To conduct an effective infection control program, the CHP requires protective isolation and respiratory isolation facilities to control outbreaks of diseases such as tuberculosis. These facilities are also required by OSHA regulations. Isolation rooms should be cheeked at least every month, and air changes in the rooms should be monitored. Failure of the isolation rooms to work correctly increases the probability of an outbreak of disease among inmates and staff. Infection control nurses should inspect the isolation rooms at least monthly. 30. An integrated health care system requires the maintenance of medical records, which should accompany inmates who are transferred from one institution to another. Current professional standards also require the maintenance of valid statistics concerning the incidence and prevalence of infectious diseases. III. POLICY AS AN INSTRUMENT OF CONSTITUTIONAL VIOLATIONS Budgeting Insufficiencies and Instability 31. Since 1993 the Correctional Health Program has never has been provided with a budget sufficient to provide adequate health care services to inmates. In addition, money has been promised to the Program by the Office of Management and Budget, but never delivered, and the Program has not been able at times, to use even available funds. The Health Services and Facilities Administration (AFASS, the Spanish acronym) has on occasions arbitrarily deducted money from the appropriation assigned for the Program, which cannot submit a budget request directly to the Puerto Rico legislature nor to the Office of Management and Budget. The CHP must, instead, submit a proposed budget request to AFASS. From there on, the Program has no control over what happens to its budget request. Nevertheless, by the time the request reaches the legislature, it has been dramatically slashed. Correctional Health Program personnel are not allowed to be involved in developing the CHP’s portion of the Executive Branch’s budget, beyond submitting the initial proposal to AFASS. 32. A stable budget is critical for the Program because the administration and management of resources cannot be planned unless the program administrators know how much their budget will be. The budgeting process under which the CHP operates does not provide any certainty to the program’s administrators. Even after funds have been appropriated to the program, the staff is never really sure how much money will be available for the program’s operations. Resolving these issues throughout the year diverts attention and efforts from the primary responsibilities of the program. In spite of increasing expenses over the last four fiscal years, and increasing budget petitions, the funds appropriated for the CHP for the 94-95, 95-96, and 96-97 fiscal years did not change significantly. 33. The Puerto Rico Correctional system is not capable of achieving compliance with the medical and mental health care plans under the present administrative arrangements. The inadequate resources allocated to the CHP result in staffing and supply problems. The present financial arrangements for the Program are not sufficient to achieve compliance with the medical care plan. At present, the process for obtaining professional staff to work in the program is insufficient to comply with the medical and mental health care plans. The physical facilities in many of the institutions are inadequate to achieve compliance with both plans. 34. In preparing a budget request for the CHP, institutional staff present their needs to the program’s central office and based on these and the central office’s own needs, a budget petition for the program is prepared by the central office staff. The program sends the budget petition to the executive director of AFASS, and has no further participation in the budget process. The process of preparing the CHP budget petition begins in September of the prior year, and the Governor’s budget petition is presented to the legislature in February or March. The appropriations are made by June 30th and arrive at the program during the first or second week of July of the new fiscal year. 35. The Chief Health Care Coordinator was not involved in preparing the budget for the 1992-1993 or the 1993-1994 fiscal years, because those budgets already had been prepared by the time of her appointment. The budget appropriation for the CHP, including the Correctional Psychiatric Hospital, during the 1993-1994 fiscal year was approximately $18.4 million. Late in 1993, however, the program was notified that $1 million would be subtracted from the appropriation, and later was notified that an additional $1 million would be subtracted from the appropriation. No explanation was forthcoming for either subtraction. Exhibit 613. See also Exhibits 331-334. After the CHCC sought assistance from the Secretary of State, then the Governor’s Personal Representative anent this litigation, the $2 million was restored to the program, along with an additional $686,505.00. In spite of the additional $686,-505.00 provided the CHP in the 1993-1994 fiscal year, the program had a budget shortfall of nearly $2 million for that year. 36. For the 1994-1995 fiscal year, the CHP submitted a budget petition of approximately $27.5 million, but was appropriated only $22.6 million for operational expenses. The program also had requested approximately $9.5 million for the Correctional Psychiatric Hospital, but was appropriated only $8.4 million. The total amount appropriated to the CHP, therefore, was $31 million. During the 1994 — 1995 fiscal year, the government withheld 4 percent of the total funding for government agencies to pay incentive bonuses to government employees. In addition, 2 percent of funds appropriated for government agencies was withheld as a contingency fund. This policy affected the CHP as well as all government agencies, but no amounts were withheld from the appropriation for the Correctional Psychiatric Hospital. As a result of the 4 percent incentive pay withholding and the 2 percent withholding for contingencies, the resulting amount available for planning to the CHP, including the Correctional Psychiatric Hospital, during the 1994-1995 fiscal year was $29.785 million. 37. After the Chief Health Care Coordinator requested assistance from the Secretary of State in late 1994, $2.2 million of the amount appropriated for the Correctional Psychiatric Hospital was transferred to the CHP for its operations. The Secretary of Health promised to cover any further deficiencies that might occur in the program’s budget for that fiscal year. In addition to the $2.2 million transfer from the Correctional Psychiatric Hospital, the CHP was restored the 6 percent withheld for merit bonuses and contingencies, although the restoration of these funds did not occur until three weeks before the end of the fiscal year in which they were appropriated. The total funding available for the program in the 1994-1995 fiscal year, therefore, was $24,826,064. The Chief Health Care Coordinator managed to obtain the transfer of funds from the Correctional Psychiatric Hospital and the restoration of funds from the contingency and merit bonus funds after plaintiffs filed a motion for a preliminary injunction to compel defendants to adequately fund the CHP. 38. Expenditures by the CHP in fiscal year 1994r-1995, however, were approximately $31 million, leaving the program with a deficit of approximately $6.3 million. It cannot be determined how the $6.3 million deficit was covered, because the responsibility for covering costs and expenditures of the program falls upon AFASS. 39. For the 1995-1996 fiscal year, the CHP submitted a budget request for approximately $64.6 million. This amount includes $15.2 million for the Correctional Psychiatric Hospital, $38.4 million for the CHP’s operations, and $11 million for the medical surgical unit. The medical surgical unit was to be a secure unit for tertiary care for inmates, to minimize rebanee on outside facihties: this component of the health care system also has not been developed. The amount appropriated for the CHP for the 1995-1996 fiscal year was approximately $34.2 million; which is just under 50 percent of what was requested. The $34.2 million included $2 million appropriated for the Correctional Psychiatric Hospital, and $32.2 million for CHP operations. Although the Correctional Psychiatric Hospital could not be opened during the 1995-1996 fiscal year, the CHP already had hired staff for the hospital based on the promises made to her that the Hospital was nearing completion. 40. At a meeting in June 1995, the Secretary of Health agreed to make available $48.3 million to the CHP. These funds would consist of the full $38 million requested for CHP operations and approximately $10 million for the Correctional Psychiatric Hospital. In spite of the Secretary of Health’s promises at the June 1995 meeting, only $40 million was assigned to the CHP consisting of the original $32 million appropriated, plus an additional $8.4 million. The additional $8.4 million assigned to the CHP disappeared from AFASS’ information system in June 1996 because the Office of Management and Budget had decided not to make the monies available through AFASS’ accounting system. Instead, the program would be allowed to spend up to $5 million and any excess would be covered by AFASS from its own budget. The CHP spent $40 million in fiscal year 1995-1996, leaving a deficit of $7.8 million.- This is typical of the unstable budgeting practices which make rational, efficient and cost effective management impossible as a direct result of the defendants’ policy acts and omissions. 41. For fiscal year 1996-1997, the CHP requested a budget of $75.5 million, including $50.8 million for the program’s operations, $12.8 million for the Correctional Psychiatric Hospital, and $11.8 million for the Medical Surgical Unit. The total amount appropriated to the CHP for fiscal year 1996-1997 was $31 million for the program’s operations. This amount also was supposed to include the Correctional Psychiatric Hospital. In addition to the $31 million appropriated to the CHP’s operational budget, two special assignments totaling $900,000 were made to the Program. Although no funds had been specifically appropriated to the CHP for the Correctional Psychiatric Hospital for fiscal year 1996-1997, in May 1996 the Governor signed an executive order awarding $2 million for opening the Correctional Psychiatric Hospital, which was accomplished in August 1996. 42. Given the anticipated shortfall in funding for the CHP in fiscal year 1996-1997, in July 1996 the Director of the Office of Management and Budget agreed to award an additional $20 million to the program. In spite of the promise by the OMB Director, the $20 million never was made available to AFASS for CHP’s budget. In May 1997 the Governor signed an executive order transferring $20 million from the Budgetary Fund for use by the CHP. These funds were placed within the Department of the Treasury. The Governor’s executive order of May 1997 did not actually provide the CHP with an additional $20 million, but merely reinstated the $20 million that the Director of the OMB had promised the program the previous year. 43. At the time of the hearing it was still not known how much the CHP spent in fiscal year 1996-1997 (which had ended on June 30) because AFASS ceased making payments to contractors and suppliers and the program’s expenses are currently are being paid for from the $20 million in the control of the Department of the Treasury. The process of determining how much money is owed by the program still hasn’t been completed. Of the $20 million placed in the control of the Treasury Department, approximately $8 million were used to pay debts of the CHP for the 1996-1997 fiscal year and debts outstanding from prior fiscal years. Another $8 million was spent in the program’s regular operations. 44. The Program was assigned $46.06 million for its 1997-1998 budget. The CHP anticipated that it would have a budget shortfall of approximately $6 million for the 1997-1998 fiscal year. Based on the anticipated 1997-1998 shortfall, the CHP prepared four analyses of its budget in an attempt to confront and deal with the contemplated shortfall. 45. As an example, one alternative proposed for dealing with the 1997-1998 budget shortfall would be to dismiss 20 regular employees. Furthermore, purchases would be reduced by 32 percent comprising of medical and surgical material; dental material; health education material; physical, occupational and recreational material; office and maintenance supplies; dental prosthesis and eyeglasses. In addition, the program would reduce by 15 percent the purchase of drugs and medicines, it would eliminate the purchase of medical and office equipment, reduce by 18 percent the general expenditures of the program and do away with the reserves of funds created to pay debts from previous years. The implementation of any one of the four alternatives to counterbalance the 1997-1998 budget shortfall would deal a severe blow to the delivery of health care services by CHP. 46. The budgetary difficulties faced by the CHP have not allowed the program to use its budget and fiscal processes as administrative and management instruments because the program has never been able to anticipate how much money it will have available. The program has no control over its budgetary and fiscal situation, much less the autonomy required to comply with the court’s orders. 47. Since 1993, the services provided to inmates have increased. This increase necessarily results in higher costs to the CHP. As more inmates are seen by health care professionals, more lab tests are ordered and more illnesses and diseases are diagnosed and treated. 48. The problem of lack of funds which affects the CHP has diverted the attention of its personnel from other administrative aspects of the program. The time spent addressing the funding problems has reduced the time available to attend to personnel and internal administrative matters. The CHP’s staff does not know how, when or whether budget deficits are covered since this is an internal matter within AFASS’s control. 49. Because of funding shortages, the CHP can only obtain special nutritional supplements for the most seriously ill patients. One of the Chief Health Care Coordinator’s concerns in initiating a triple therapy program for HIV-positive patients in the AOC system is the lack of monies for medication and personnel. The CHP could have begun to provide triple therapy in 1996 if the concerns about budget, inmate tracking, and continuity of care had been addressed. The cost per patient of triple therapy is between $8,000 and $13,000 per year. Instituting triple therapy, however, can eventually save the Commonwealth money by reducing the number of patients that are hospitalized for opportunistic infections. The shortages and uncertainty in appropriations for the CHP make it difficult to contract with outside vendors since the program has to certify to them that funds are available to cover the expenses generated by any such contract. In addition, the program could not fill thirty staff positions needed to handle the administrative responsibilities associated with the execution of such contracts. 50. Administrative Order 112, together with Administrative Order 66, were intended to provide the CHP with greater autonomy in contracting and budgeting. Exhibit 379. Order 112 was intended to allow the CHP to transfer funds between line items in its budget. Administrative Order 112, however, did not fulfill the purposes for which it was promulgated because the Correctional Health staff were not given contract numbers. The CHP also could not exercise the budgetary autonomy intended by Administrative Order 112 because the program’s staff did not have access to the Department of Health computers to transfer funds from one line to another. Thus, even when monies were available in the program’s budget, the program may not be able to use them. 51. The dissolution of the Anti-Addiction Services Department (DSCA, the Spanish acronym) and the creation of the Administration of Mental Health and Anti-Addiction services (ASSMCA, the Spanish acronym) created problems for the CHP because some former DSCA personnel were assigned to the CHP’s mental health services program. Even so, the program was not assigned the additional financial resources to pay the salaries of those added persons or to provide anti-addiction services to inmates. Administrative Order 69, which transferred to the CHP the responsibility for providing services formerly provided by DSCA, established that all financial resources, personnel and equipment were to be transferred to the CHP. Although Administrative Order 69 required the CHP to provide mental health services for inmates with addictive disorders, the program was not assigned any budget for providing those services. In spite of the fact that both personnel and responsibility for anti-addiction services supposedly were transferred from DSCA to the CHP, the program never received the budgetary funds to correspond to the transfers. The only items actually transferred to the CHP from DSCA were some vehicles in very poor condition and some equipment. Deficiencies in Staffing 52. The Correctional Health Program never has been able to recruit the number of health care staff required to provide adequate health care services to the AOC inmates. In particular, the number of staff personnel required to provide mental health services has never been enough. In some intake centers, where medical personnel are supposed to cover the admissions area 24 hours per day, CHP can only provide staff during the day and evening hours. 53. The Program does not have adequate control over its personnel administration. This lack of control has led directly to deficiencies in the delivery of health care services, and, in at least one instance, caused the death of an inmate. Arbitrary and unreasonable limitations on the program’s ability to recruit personnel have been imposed on the program by the Secretary of Health and the Director of the Office of Management and Budget (OMB). For example, after the government privatized the Commonwealth’s public health system, the Secretary of Health and the Director of the OMB instructed the CHP that it must first recruit new personnel from individuals formerly employed by the (Department of Health) DOH. It took several months for AFASS to deliver to the CHP a list of candidates who had been ceased from their employment with DOH as a result of the health reform. Even then, most of the candidates had no interest in working for the CHP. 54. Personnel in the CHP are grouped into four categories: employees who hold regular or permanent positions, transitory employees, wage earning employees — also called irregular employees — and contract employees. The law that created AFASS permits the recruitment of health professionals-by contracts to provide medical services to the patients. Of the four categories of personnel in the DOH, the irregular and contract categories are the least attractive to prospective staff because they do not include fringe benefits. 55. Employees in the irregular category were recruited by the clinical services director at each institution and, once recruited, were officially appointed by the program’s central office personnel division. As to the employees to be hired under contracts, the Chief Health Care Coordinator approved the recruitment of such employees subject to availability of funds. Once the potential employee is recruited, however, the award of a contract requires the processing of a number of documents. The contract processing procedure was originally performed by AFASS. Subsequently, the authority to process these contracts was transferred to the CHP although such contracts were still subject to AFASS’ approval. Some of the documents that had to be compiled included a negative certification of debt from the Municipal Revenue Collection Center (CRIM, the Spanish acronym), the Department of the Treasury, and the Administration for Child Support Enforcement (ASUME, the Spanish acronym). This process could take months to complete. After the Court issued an order (at the joint request of plaintiffs and defendants) allowing the Chief Health Care Coordinator to process contracts, the process is presently completed in just a few days. 56.During the time that it takes to process a contract for professional services, the professional is not paid, even though he or she was performing services for the CHP. The CHP would compensate the professional by means of a “debt resolution.” Under a debt resolution system, the actual payment is made after a contract is approved.. The executive director of AFASS can approve a debt resolution up to a certain amount but beyond that amount, it must be approved by the Secretary of Health. Currently, however, the executive director of AFASS is the Secretary of Health. Typically, in agencies other than the DOH, a debt resolution is used to pay for services rendered on a onetime basis, where there is no contract. If a contract is being processed, then the agency does not issue debt resolutions. Initially, payment by debt resolution was made during the time that contracts were pending at AFASS, but later, the process was changed so that debt resolutions were issued only after the contract was approved. The Secretary of Health, however, has tried to limit the use of debt resolutions. In effect, this leaves the CHP in a difficult situation because it cannot offer contract employees immediate pay while contracts are pending, but it cannot offer them debt resolutions either. See Exhibits 179-198, 227-237. In July 1995, AFASS notified the CHP that it no longer would pay contract professionals whose contracts were pending renewal until after the contract was renewed. Under this arrangement professionals had to work for extended periods of time without being paid. Exhibits 228, 229. 57. Prior to August 1996, doctors on duty were paid $18 per hour, and it was extremely difficult to get anyone to work for that money. Beginning approximately in August 1996, doctors on duty were paid $22 an hour from Monday to Friday night and $25 an hour on weekends and holidays. This modest raise has not resolved the problems of recruiting doctors to work at night and on weekends because at medical facilities covered by the health reform, night and weekend shifts are paid $30 to $35 an hour. In June of 1996 and June of 1997, many professionals under contract positions resigned because the money they were paid was too low and because the facilities were grossly inadequate. 58. The CHP cannot pay per diem and mileage to the doctors on duty. In 1996 the CHP paid mileage to the personnel under contract but was not authorized to pay per diem. 59. The large number of transitory employees and regular positions in the CHP has resulted in instability within the work place. The transitory positions offer some measure of stability, but those positions tend to be extended after expiration of the initial term on a month-to-month basis, offering the employees little assurance that their positions will remain available in the long term. 60. The CHP can offer no incentives for the economic betterment of its personnel. The CHP cannot provide any economic incentives to reward good work or merit. Contract personnel in the CHP have no fringe benefits except for mileage. The bureaucratic and budgetary obstacles to recruiting and retaining qualified personnel result in a loss of motivation among the personnel. Correctional Health professional staff complain that the personnel system is too complicated and bureaucratic. The budgetary and bureaucratic obstacles to recruiting and retaining professional staff negatively affect the ability of the administrators of the CHP to monitor the quality of services delivered to the penal population. The CHP cannot recruit the necessary staff it needs to operate efficiently because the difference in the budget appropriated to the program in relation to the actual payroll expenses of the program in previous years is inadequate. 61. The number of regular employees increased between March 1996 and June 1997 as a result of a law passed in 1996 that granted regular status in permanent positions to certain transitory employees. Exhibit 543. The CHP experienced substantial instability in staffing levels during the period from April 1995 through June 1997. Exhibit 590. The CHP experienced a substantial decrease in recruitment, and a consequential decrease in staffing levels, in June 1996 after the adoption of Law 150. This law established a two-year waiting period before a person who had worked for the government could be re-hired into government service. Furthermore, the Program’s recruitment efforts declined in September, October, November, and December 1996 because of the electoral law’s prohibition on hiring personnel for sixty days before and after a general election. Exhibits 590, 545. A precipitous decline in recruitment was experienced by the CHP in June 1995 because a hiring freeze was implemented at the Department of Health. Exhibits 590, 545. The CHP experienced a decline in the number of registered nurses employed by the program in May and June of 1996. The program recovered from the decline following July 1996 after the promulgation of Administrative Order 112, but experienced another decline after February 1997 because the prohibition on hiring imposed by the electoral law in the months following the 1996 election ended and nurses started seeking employment with other governmental agencies. Exhibits 547, 595, 596. The experience of the CHP in recruiting and retaining registered nurses during 1995, 1996, and 1997 was very disheartening. 62. In August 1997, the CHP could not hire nurses for Camp La Pica because of budgetary shortfalls. The shortage of nurses at La Pica had to be covered by transferring nurses from the Ponce correctional facilities. It became very difficult at times to effectuate said transfer due to the resistance and protests of the nurses selected to be transferred to La Pica. 63. The CHP is not complying with the Medical and Mental Health Plans in part due to the difficulties it faces hiring and retaining personnel. Said difficulties are caused by factors foreign to the functioning of the Program. 64. A serious setback in the ability of the CHP to recruit qualified professional personnel occurred in 1995 when the Government Ethics Law was amended to mandate a two-year prohibition or waiting period before awarding employment contracts to persons who formerly held civil service positions with the government. This amendment, knows as Law 150, created problems for the CHP because one of the sources available to it for recruitment of health professionals comprised those individuals who had just completed a mandatory one-year public service requirement. These persons were considered “civil servants” under the statute, and thus were subject to the two-year waiting period. It was possible depending on the circumstances to obtain a waiver from said prohibition. The waiver had to be obtained from either the Government Ethics Office ór the Central Office of Personnel Administration (OCAP, the Spanish acronym). The delays confronted in obtaining a waiver, in most cases, was too costly to significantly improve recruitment. 65. Unfortunately, OCAP and the Government’s Ethics Office (OEG, the Spanish acronym) had conflicting interpretations of Law 150. OCAP was of the opinion that the mandatory year of public service did not fall within Law 150. The OEG not only concluded otherwise, but also insisted that OCAP had not authority to interpret Law 150 in such eases. In addition, the OEG opined that a person who had obtained a waiver from the application of Law 150 was required to apply for a second waiver when that person’s contract was renewed, even if there was no change in the substantive terms of the original contract. Following the entry of the Court’s order of May 16, 1997, the CHP ceased requiring waivers for persons who already had obtained a waiver but whose contracts were up for renewal. The CHP, nevertheless, was not able to recover from the detrimental effects of Law 150 on its recruitment efforts. As a result of the passage of Law 150, the CHP lost 14 professionals because that were not granted waivers. These included general practitioners, psychologists, dentists, occupational therapy assistants, physical education teachers, and medical coordinators. The defendants have not shown that any effort was made to solve these bureaucratic conflicts in spite of the dire consequences which they directly caused to the quality of the health care provided to the members of plaintiffs’ class. 66. The CHP attempted to fill positions with independent contractors because the program could not offer salaries to professionals for permanent employment positions that were competitive with private sector opportunities. By offering them contracts instead of permanent employment positions the program was able to offer higher salaries. Although this practice is fairly common throughout the Department of Health since the department’s salary scales are too low to attract qualified professionals for employment, the CHP was not very successful in its efforts to recruit personnel. 67. The CHP began to develop a personnel office in 1994. The creation of a personnel office within the CHP was authorized by Administrative Order No. 66 of June 3, 1993, which also allowed the program to appoint employees and to contract for professional services. The CHP began to recruit personnel in April 1994 until July 1994, at which time it had to suspend recruitment because of a June 1994 moratorium on hiring at the Department of Health. The moratorium on hiring declared in June 1994 continues in effect as to permanent positions and irregular positions, but the CHP has managed to hire professionals as independent contractors. The program also had to seek the intervention of the Governor’s Personal Representative to cover positions at the Ponce Complex when that complex became an intake center. Even though the program obtained the requested assistance, there was considerable delay in staffing the intake center. 68. A second Administrative Order, Number 112, issued in July 1996, delegated further authority to the CHP in making hiring decisions. The program’s ability to make use of the authority granted by Administrative Orders 66 and 112 has been curtailed by a number of hiring moratoria. The Secretary of Health insisted that all irregular appointments required the approval of the deputy director of AFASS. This requisite meant that the delegation under Administrative Order 66 had little effect. Nevertheless, the CHP experienced a substantial increase in staffing levels during the months following July 1996, when Administrative Order 112 delegated to the program’s newly created personnel office the authority to create transitory positions. 69. Although the June 1994 moratorium continued in effect, it was conditionally lifted in October 1994 to allow the program to fill regular positions, provided that such positions were first to be offered to qualified DOH employees who had been displaced by the privatization of health services and by persons referred to CHP by the Right to Employment Administration. If no personnel was available from these two sources, then the CHP was permitted to recruit from outside the DOH. Only if the Deputy Secretary of Health issued a written certification that there were no candidates available under the health reform, could the program recruit from other sources. The requirement that the CHP recruit from among DOH employees displaced by the health reform led to a number of problems. For example, the Secretary of Health transferred a number of displaced DOH employees to the CHP without first notifying the CHP’s central office. In addition, the Executive Director of the CHP made a number of attempts to obtain a list of available personnel displaced by the health reform, but the list was not provided until late 1994, several months after the directive was issued. Until then the CHP continued recruiting personnel from the other sources up to December 1994. It was then that the Secretary of Health announced that all irregular appointments had to be submitted for approval to the deputy director of AFASS. The CHP made numerous efforts to recruit DOH personnel displaced by the health reform from 1994 through 1997, but many of the candidates that were available did not want to work in the prisons. A large number of them did not even show up for interviews with the institutional medical directors. 70.The CHP has been losing ground steadily since 1996 in recruiting and retaining personnel. During 1997, the program lost the executive director, its director of mental health services, the director of the psychology section, the pharmacy director, and the director of the control of infectious diseases (who was replaced in July 1997). In 1996 the program lost its engineer, its director of quality improvement, its director of dental services, and previously in 1995, the program lost its personnel director. With the exception of the director of the area of infectious disease control, the program has not been able to replace any of the other directors it has lost. The program suffers from a high rate of turnover, which currently stands at the rate of 50% throughout the system. This high rate of turnover affects proportionately, in negative way, the continuity of care provided to patients in the institutions. The conditions at the physical facilities of the AOC institutions have made it difficult to recruit personnel. Another difficulty when recruiting personnel is the fear that prospective recruits have to work in a prison setting. At times, the CHP has had to stop recruitment because of budgetary difficulties. At other times, the program has had the budget, but there were no candidates available. Still at other times the budget has been available and candidates have been recruited, but because of some bureaucratic impediment, they were not hired. 71. It is impossible to cover every aspect of health care delivery when the program suffers from shortages of key personnel. The shortage of CHP staff at the institutional level has severe consequences on the ability to provide health care to inmates. For example, the effect of the amendment to the Government Ethics Law (Law 150) meant that admission services were curtailed or eliminated at some institutions, resulting in numerous inmates with undetected health conditions entering the prison system. 72. Other factors which impact on staff retention are the frustration that the personnel feel when they are not able to move the Program towards greater compliance with the court’s orders; the difficulty in replacing lost personnel because it cannot compete with the private sector in terms of salary and benefits; the crowded and inadequate facilities where the health services are provided; and the lack of adequate equipment. 73. It may take six to eight months to fully train CHP staff before they become familiarized with the institutions and the Program’s policies. Each time the Program loses personnel this represents a loss of a significant investment in time and resources even if the person leaving is immediately replaced. 74. The dedication and quality of the CHP personnel are simply not enough of a driving force to continue to improve the correctional health services offered. People can burn out, which in turn, causes the fragile system that is in place to collapse. 75. The CHP also lacks the necessary staff to cover the infectious disease program at the central level. In particular, the program lacks a statistician. The absence of staff in this area means that certain duties that need to be performed by specially trained staff are carried by other health care staff. 76. One specific area of great concern to the court is the decline in the mental health staffing levels. It is very difficult to find mental health providers who want to work in a correctional environment. The problem exists at both the retention and recruiting stages. The requisite staffing levels for the mental health care component of the CHP were established as a result of a mental health staffing plan that was developed after the Mental Health Plan was adopted. Since that time the demand for mental health staff has increased in the AOC, in part, because of an increase in the inmate population, and also because of an increase in the number of acute psychiatric cases being admitted from the free community. Statistics for the program show that after a marked improvement in staffing in the types of mental health provided between 1993 and 1996, these fell overall during the 1996-1997 fiscal year. The reasons encountered in recruiting personnel to provide mental health services are two-fold: first, most mental health professionals gravitate to the San Juan area, thereby reducing the number of potential candidates for facilities outside of the metropolitan area; second, the CHP cann