A recent settlement could result in greater access to records held by private medical care companies that are paid millions of dollars to provide care to New Mexico’s prisoners each year.
The Dec. 10 agreement between Prison Legal News — a Florida-based nonprofit monthly magazine focused on prisoners’ rights — and the state Department of Corrections requires the next prison medical care contract include a clause requiring the contractor “comply with all provisions of applicable New Mexico law,” including public records laws.
“We’re trying to make it clear … that any medical provider for Corrections in the state of New Mexico has to respond to public records requests pursuant to the [Inspection of Public Records Act],” the magazine’s Albuquerque-based attorney Laura Schauer Ives said in phone interview last week.
The agreement would take effect in two years, when the next medical care contract is due to be renewed.
It could hypothetically put an end to an ongoing game of tag that has sent record seekers ping-ponging between the Corrections Department — which routinely says it doesn’t have the records — and the medical care companies, which insist they aren’t subject to public records laws.
But Prison Legal News Editor Paul Wright — who has waged similar battles across the country — said in a phone interview the companies will likely still balk at turning over the records.
“This is a skirmish in a longer battle,” he said. “These companies thrive on keeping things secret; secrecy is their business model.”
Prison Legal News — and its parent organization the Human Rights Defense Center — are among several groups that have sued over access to the records in recent years, saying information about the complaints the companies are facing and how they were resolving them is critical to evaluating prisoners’ quality of care.
The Santa Fe New Mexican, the Albuquerque Journal and the Foundation for Open Government jointly sued Corizon Health in 2015 after the company — which held a $37.5 million-per-year contract to provide medical care to state inmates from 2012-16 — refused to release its settlement agreements in response to a request from The New Mexican.
State District Judge Raymond Ortiz ruled in 2016 the records were public and must be released.
The New Mexico Court of Appeals affirmed his ruling in September 2020. And the state Supreme Court declined to review the ruling late last year.
But despite that ruling being cited as prevailing case law in subsequent lawsuits, the department and the vendors have continued refusing to produce the records, forcing anyone seeking them to take the matter to court.
The state spent $36,603 and five years fighting the Prison Legal News case, according to the state Risk Management Division, and is racking up legal bills in several other pending cases on the same topic, including one from the Human Rights Defense Center.
In that case — filed in July — the Defense Center is suing former inmate medical care provider Centurion Correctional Healthcare and the Corrections Department seeking access to “records of litigation against Centurion … where Centurion and/or its insurers paid $1,000 or more to resolve the claims agains it.”
Centurion held the state inmate medical care contract from 2016-19.
In addition to seeking the records and damages in the case, the Defense Center seeks an order from the court requiring the disclosure of “all similar such records in the future.”
During a recent hearing in the case, Centurion’s lawyer Alfred Park didn’t say the records aren’t public.
He approached it from another angle, asking the judge to dismiss the case on the grounds Centurion isn’t a public body, so it isn’t required to designate a records custodian, and IPRA enforcement actions can only be brought against designated records custodians.
Thus, he reasoned, enforcement actions couldn’t be brought against the company.
State District Judge Kathleen McGarry Ellenwood seemed unmoved by that argument during a Dec. 6 hearing on the motion, saying: “That places anyone making a public records request … in the position of being frustrated and not being able to get the records, which is kind of contrary to what the Legislature thought of when they created [the Inspection of Public Records Act].”
“It seems to me the department takes [its open records responsibilities] and contracts them out to this third party, thereby avoiding the public record responsibilities that it has,” she said.
“I just really have a problem with that, to tell you the truth,” she added.
Ellenwood denied Centurion’s motion for a dismissal in the case, writing in her Dec. 13 decision Ortiz’s 2016 ruling still applied.
“A private entity performing a public function has a legal duty under the New Mexico Inspection of Public Records Act … to provide public records arising from performance of that public function,” she wrote.
Albuquerque attorney Parrish Collins, who represents more than a dozen plaintiffs who have filed lawsuits alleging they were denied adequate medical care in state custody, is also suing the state, and Centurion.
“Centurion’s refusal to provide the requested documents is particularly egregious in light of its persistent and repeated claims in other litigation that it is a public employee … or an arm of the New Mexico Corrections Department,” he said in a recent phone interview.
Parrish said the company has claimed and been granted governmental immunity in cases he has pending in the First Judicial District, which protects the company from having to pay punitive damages and caps actual damages in the cases at $650,000.
“It’s weird and counterintuitive,” he said, adding, for a multibillion-dollar corporation such as Centurion, it’s cheaper to pay out the occasional settlement than it is to provide proper medical care.
“They are operating outside the law, basically,” he said.
The state currently contracts with Wexford Health — a company the state hired in 2019 after having fired it in 2007 over the quality of care it delivered, according to previous reports.
Wexford’s contract is worth $246 million over the next four years.
New Mexico inmates have filed multiple lawsuits against all three vendors — some of the largest providers of prisoner health care in the nation — alleging their health care needs aren’t being met.
All three companies have also provided care in state prisons in Arizona, where officials await a ruling in a weekslong federal trial aimed at determining whether medical care was so bad inside that state’s prisons that it violated prisoners’ right to be free from cruel and unusual punishment.
None of the three companies responded to requests for comment.
Corrections Department spokesman Eric Harrison didn’t directly address The New Mexican’s written questions
on the topic but wrote in an email last week:
“The Department understands the important [sic] of the Inspection of Public Records Act, and remains committed to transparency. We will continue to work with our contractors and partners to ensure that any documents considered public record are made available, subject to New Mexico’s law.”
