CS for CS for SB 2038 First Engrossed 20122038e1 1 A bill to be entitled 2 An act relating to the privatization of correctional 3 facilities; creating s. 944.7115, F.S.; requiring that 4 the Department of Management Services, working with 5 the Department of Corrections, privatize the 6 management and operation of certain correctional 7 facilities and assigned correctional units; requiring 8 that the Department of Management Services issue two 9 or more requests for proposals; providing a timeframe 10 for proposals submitted in response to a request for 11 proposals; requiring the department to prepare a 12 business case for the privatization before issuing the 13 requests for proposals; providing certain cost-saving 14 requirements; requiring that the Department of 15 Corrections determine the costs incurred for the 2010 16 2011 fiscal year for each correctional facility and 17 assigned correctional unit according to a specified 18 formula; limiting the costs to be incurred by the 19 state in the second or subsequent contract years; 20 providing that the provisions in a request for 21 proposals which relate to cost savings are not subject 22 to challenge in any protest of the specifications of a 23 request for proposals; requiring that each contractor 24 selected as a result of a request for proposals manage 25 and operate the correctional facilities and all 26 assigned correctional units at certain capacities; 27 requiring that the Department of Corrections classify 28 all inmates without regard for and without 29 consideration of whether the inmates will be assigned 30 to facilities operated by the Department of 31 Corrections or by a contractor; requiring that each 32 facility’s medical and psychological grade population 33 percentages remain substantially unchanged from the 34 average daily population calculated for the 2010-2011 35 fiscal year; requiring that the Office of Program 36 Policy Analysis and Government Accountability conduct 37 a review of the assignments of inmates by the 38 Department of Corrections; requiring that the office 39 submit a report of its findings to the Governor and 40 Legislature by a specified date each year; requiring 41 that certain accounts associated with the correctional 42 facilities and assigned correctional units continue to 43 be remitted to the General Revenue Fund; providing 44 that certain statutory provisions regarding 45 contractual arrangements with private entities for the 46 operation and maintenance of correctional facilities 47 and the certification of private correctional officers 48 do not apply to a request for proposals or a contract 49 authorized by the act; providing that s. 216.023, 50 F.S., regarding legislative budget requests furnished 51 to the Legislature, does not initially apply to the 52 Department of Corrections or the Department of 53 Management Services with respect to the services 54 required to be privatized under the act; providing for 55 a performance audit by the Office of Program Policy 56 and Government Analysis of any contract awarded 57 pursuant to the act; specifying the requirements for 58 any contract resulting from a request for proposals; 59 limiting the term of the contract and providing for 60 renewal; requiring the appointment of a contract 61 monitor; providing requirements for the certification 62 of private correctional officers at the contractor’s 63 expense; providing required performance measures for a 64 contract that results from a request for proposals; 65 requiring the contract to specify that employees of 66 the contractor do not have the right to strike; 67 requiring that the contractor purchase services and 68 supplies for the operation and maintenance of the 69 correctional facilities or assigned correctional units 70 from a subcontractor or supplier that is located in 71 this state or that employs residents of this state 72 under certain circumstances; providing an exception; 73 requiring that the contractor reimburse the state for 74 the total cost of unused, accumulated leave actually 75 paid by the state to former employees of the 76 Department of Corrections who were employed at the 77 correctional facilities and assigned correctional 78 units and who leave employment with the Department of 79 Corrections; requiring that the Department of 80 Management Services certify to the contractor the 81 amount that must be reimbursed; requiring that the 82 contractor pay the reimbursement to the state within a 83 specified period after receiving the department’s 84 certification; prohibiting the cost of such unused, 85 accumulated leave from being included in the costs 86 incurred by the state for the 2010-2011 fiscal year 87 and in the 7 percent cost savings; requiring that the 88 contractor pay to the Department of Management 89 Services the reasonable and direct costs associated 90 with the pursuit or apprehension of an escapee from a 91 correctional facility and incurred by any state or 92 local law enforcement agency while involved in the 93 pursuit or apprehension of an escapee; requiring that 94 a specified percentage of the cost savings from the 95 privatization required under the act be directed to 96 the Department of Juvenile Justice for the purpose of 97 funding the CINS/FINS program; requiring that the 98 Department of Management Services provide reports to 99 the legislative appropriations committees regarding 100 the performance of each contractor; requiring that the 101 Department of Corrections prepare and submit to the 102 Legislative Budget Commission proposed revisions to 103 its operating budget; requiring that the Department of 104 Management Services enter into a contract with one or 105 more winning bidders after approval by the Legislative 106 Budget Commission; requiring that current employees at 107 each designated correctional facility and assigned 108 correctional unit be given first preference for 109 continued employment; requiring that the Department of 110 Corrections make reasonable efforts for finding job 111 placements for employees who wish to continue to be 112 employed by the state; requiring that the Department 113 of Economic Opportunity expeditiously provide 114 assistance and services to employees of the Department 115 of Corrections who are not employed by the contractor 116 or who do not continue employment with the Department 117 of Corrections; providing requirements for the request 118 for appropriation of funds; limiting the authority of 119 the Department of Corrections with respect to such 120 appropriation; requiring that the Department of 121 Corrections be solely responsible for the operation 122 and maintenance of any correctional facility at which 123 the death penalty is administered; authorizing the 124 Department of Management Services and the Department 125 of Corrections to adopt rules; providing an effective 126 date. 127 128 Be It Enacted by the Legislature of the State of Florida: 129 130 Section 1. Section 944.7115, Florida Statutes, is created 131 to read: 132 944.7115 Department of Corrections; Southern Florida 133 Region; privatization of correctional facilities.— 134 (1) Notwithstanding s. 287.057(1)(b)1., the Department of 135 Management Services, working with the Department of Corrections, 136 shall, through the issuance of two or more requests for 137 proposals, privatize the management and operation of all 138 correctional facilities and assigned correctional units, 139 including prisons, annexes, work camps, road prisons, and work 140 release centers, which are operated by the Department of 141 Corrections in the Southern Florida Region and located in 142 Manatee, Hardee, Indian River, Okeechobee, Highlands, St. Lucie, 143 DeSoto, Sarasota, Charlotte, Glades, Martin, Palm Beach, Hendry, 144 Lee, Collier, Broward, Miami-Dade, and Monroe Counties, 145 excluding the South Florida Reception Center and any 146 correctional facility or assigned correctional unit that has 147 been closed or scheduled for closure before June 30, 2012. This 148 subsection does not apply to nurses working for the department 149 in Region IV. 150 (2) The Department of Management Services shall issue its 151 requests for proposals no later than 60 days after the effective 152 date of this act. The Department of Management Services shall 153 require that any proposal submitted in response to a request for 154 proposals be submitted no later than 60 days after the issuance 155 of the request for proposals. The Department of Management 156 Services shall prepare the business case for the privatization 157 required under this section, in accordance with s. 287.0571, 158 prior to the issuance of the requests for proposals. 159 (3) Each request for proposals which is issued by the 160 Department of Management Services must provide that the total 161 cost of a responsive proposal to the state during the first year 162 of the contract must result in actual cost savings to the state 163 of at least 7 percent of the costs incurred by the state for the 164 2010-2011 fiscal year for the provision of the services at the 165 correctional facilities and assigned correctional units included 166 in the request for proposals. For each correctional facility and 167 assigned correctional unit included in a request for proposals, 168 the Department of Corrections shall determine and provide to the 169 Department of Management Services the costs incurred by the 170 state for the 2010-2011 fiscal year using the average daily 171 population of each correctional facility and assigned 172 correctional unit during the 2010-2011 fiscal year and the 173 direct and distributed inmate per diem cost for each 174 correctional facility and assigned correctional unit during the 175 2010-2011 fiscal year, reduced for the 3 percent retirement 176 contribution now required by state employees under chapter 121, 177 by inmate medical costs, and by the department’s direct and 178 personnel costs associated with inmate classification. The 179 Auditor General shall review and certify all such costs. The 180 total costs to be incurred by the state in the second or 181 subsequent years of the contract resulting from a request for 182 proposals may increase annually by not more than the percentage 183 change in the Consumer Price Index for All Urban Consumers, U.S. 184 City Average, all items not seasonally adjusted or successor 185 reports, for the preceding December as initially reported by the 186 United States Department of Labor, Bureau of Labor Statistics; 187 however, any such increase is contingent upon appropriation by 188 the Legislature. Notwithstanding s. 120.57(3), the provisions in 189 a request for proposals which relate to the cost savings 190 required under this subsection are not subject to challenge in 191 any protest of the specifications of the request for proposals. 192 (4) Each contractor selected as a result of a request for 193 proposals must manage and operate each correctional facility and 194 the assigned correctional unit at capacities set forth in s. 195 944.023. 196 (5)(a) The Department of Corrections shall classify an 197 inmate without regard for and without consideration of whether 198 the correctional facility or assigned correctional facility to 199 which the inmate will be assigned as a result of the 200 classification is operated by the Department of Corrections or 201 by a contractor. Each facility’s medical and psychological grade 202 population percentages shall remain substantially unchanged from 203 the average daily population calculated for the 2010-2011 fiscal 204 year. Each facility’s average daily population shall be 205 substantially the same or greater than the average daily 206 population calculated for the 2010-2011 fiscal year. 207 (b) By October 1 of each year during the term of the 208 contracts authorized under this section, the Office of Program 209 Policy Analysis and Government Accountability shall conduct a 210 review of the assignment of inmates by the Department of 211 Corrections during the most recently ended fiscal year, 212 determine the factors and considerations used by the Department 213 of Corrections in the classification of inmates, and determine 214 if the Department of Corrections has considered in the 215 classification of inmates whether the correctional facility or 216 assigned correctional unit to which inmates are assigned is 217 operated by the Department of Corrections or by a contractor. By 218 November 15 of each year, the Office of Program Policy Analysis 219 and Government Accountability shall submit a report of its 220 findings to the Governor, the President of the Senate, and the 221 Speaker of the House of Representatives. 222 (6) Notwithstanding ss. 944.72 and 945.215, funds from 223 canteens, subsistence payments, and any other participating 224 accounts associated with or located at the correctional 225 facilities and all assigned correctional units shall continue to 226 be remitted to the General Revenue Fund. 227 (7) The provisions of ss. 944.105(1) and (7) and 944.719(2) 228 do not apply to any request for proposals or contract authorized 229 by this section. Section 216.023 does not apply to the 230 Department of Corrections or the Department of Management 231 Services with respect to the services required to be privatized 232 under this section until the Department of Corrections is 233 required to submit its legislative budget request for the first 234 fiscal year that begins after the privatization required under 235 this section has been implemented. Section 944.719(5) applies to 236 any contract awarded by the Department of Management Services 237 under this section. 238 (8) Any contract entered into by the Department of 239 Management Services resulting from a request for proposals must: 240 (a) Require compliance with all applicable federal, state, 241 and local laws and all rules adopted by the Department of 242 Management Services and the Department of Corrections. 243 (b) Require actual cost savings to the state of at least 7 244 percent of the costs incurred by the state for the 2010-2011 245 fiscal year for the provision of the required services at the 246 correctional facilities and assigned correctional units included 247 in the request for proposals. 248 (c) Be for a term not to exceed 5 years, which may be 249 renewed as provided in s. 287.057. 250 (d) Require the selection and appointment of a full-time 251 contract monitor. The contract monitor shall be appointed and 252 supervised by the Department of Management Services. The 253 contractor shall reimburse the Department of Management Services 254 for the salary and expenses of the contract monitor. It is the 255 obligation of the contractor to provide suitable office space 256 for the contract monitor at the correctional facility. The 257 contract monitor shall have unlimited access to the correctional 258 facilities and assigned correctional units. 259 (e) Require the certification of private correctional 260 officers pursuant to s. 943.1395 at the contractor’s expense, 261 and all such officers must meet the minimum qualifications 262 established in s. 943.13. All other employees of the contractor 263 who perform their duties at the private correctional facility 264 shall, at a minimum, receive the same quality and quantity of 265 training required by the state for employees of state-operated 266 correctional facilities. All training expenses are the 267 responsibility of the contractor. The Department of Corrections 268 shall be the contributor and recipient of all criminal 269 background information necessary for certification by the 270 Criminal Justice Standards and Training Commission. 271 (f) Include specific performance measures and levels of 272 expected performance for the contractor in order to ensure 273 contractor performance and accountability, and require the 274 contractor to provide the Department of Management Services with 275 information concerning each performance measure for each 276 separate correctional facility and assigned correctional unit 277 for each month, calendar quarter, and year during the term of 278 the contract, in the format specified by the Department of 279 Management Services. 280 1. The required performance measures must include, but are 281 not limited to: 282 a. The number of batteries committed by inmates on one or 283 more persons per 1,000 inmates; 284 b. The number of inmates receiving major disciplinary 285 reports per 1,000 inmates; 286 c. The percentage of random inmate drug tests that are 287 negative; 288 d. The percentage of reported criminal incidents 289 investigated by the proper authorities; 290 e. The number of escapes from the secure perimeter of major 291 institutions; 292 f. The percentage of inmates placed in a facility that 293 provides at least one of the inmate’s primary program needs; 294 g. The number of transition plans completed for inmates who 295 are released from prison; 296 h. The number of release plans completed for inmates who 297 are released from prison; 298 i. The percentage of release plans completed for inmates 299 who are released from prison; 300 j. The percentage of inmates who successfully complete drug 301 abuse education or treatment programs; 302 k. The number of inmates who are receiving substance abuse 303 services; 304 l. The percentage of inmates who complete mandatory 305 literacy programs and who score at or above the 6th grade level 306 on Tests of Adult Basic Education; 307 m. The percentage of inmates who successfully complete 308 mandatory literacy programs; 309 n. The percentage of inmates who successfully complete 310 education programs for the General Education Development (GED) 311 test preparation; 312 o. The percentage of inmates needing special education 313 programs who participate in special education programs in 314 accordance with federal law; 315 p. The percentage of inmates who successfully complete 316 vocational education programs; 317 q. The average increase in grade level achieved by inmates 318 participating in education programs every 3-month instructional 319 period; and 320 r. The percentage of inmates who successfully complete 321 transition, rehabilitation, or support programs without 322 subsequent recommitment to community supervision or prison for 323 24 months after release. 324 2. For work release centers, the required performance 325 measures must also include, but are not limited to: 326 a. The percent of employment of supervised individuals; 327 b. The illegal substance use by supervised individuals; 328 c. The victim restitution paid by supervised individuals; 329 d. Compliance by supervised individuals with no-contact 330 orders; 331 e. The number of serious incidents occurring at the 332 facility; and 333 f. The number of absconders. 334 (g) Require that any contract between the contractor and a 335 union representing employees of the contractor at a correctional 336 facility or assigned correctional unit must provide that the 337 employees of the contractor do not have the right to strike. 338 (9) The contractor shall purchase services and supplies 339 required for the operation and maintenance of the correctional 340 facilities or assigned correctional units included in the 341 contract from a subcontractor or supplier that is located in 342 this state or that employs residents of this state if the costs 343 of such services and supplies are equal to the cost of such 344 services and supplies offered by a subcontractor or supplier 345 that is not located in this state or that does not employ 346 residents of this state; however, if the costs, terms, and 347 conditions associated with the purchase of services and supplies 348 are not identical, the contractor may select the subcontractor 349 or supplier preferred by the contractor. 350 (10)(a) The contractor shall reimburse the state for the 351 total costs of all unused, accumulated leave actually paid by 352 the state, in accordance with law and policies in effect on 353 January 1, 2012, to former employees of the Department of 354 Corrections who were employed at the correctional facilities and 355 assigned correctional units included in the contract during the 356 pay period immediately prior to the date on which the contractor 357 begins performance and who leave employment with the Department 358 of Corrections at any time within 1 year after such date. 359 (b) The Department of Management Services shall certify to 360 the contractor the amount that must be reimbursed and the 361 contractor shall pay the reimbursement to the state no later 362 than 180 days after receipt of such certification. 363 (c) The cost of such unused, accumulated leave may not be 364 included in the costs incurred by the state for the 2010-2011 365 fiscal year for the provision of services at the correctional 366 facilities and assigned correctional units included in the 367 requests for proposals and may not be included in the 7 percent 368 cost savings required under subsection (3) which must be 369 attained during the first year of the contract. 370 (11) The contractor shall pay to the Department of 371 Management Services the reasonable and direct costs, certified 372 by the Department of Management Services and included in the 373 contract, which are associated with the pursuit or apprehension 374 of an escapee from a correctional facility and incurred by any 375 state or local law enforcement agency while involved in the 376 pursuit or apprehension of an escapee. 377 (12) Twenty percent of the cost savings required under 378 subsection (3) shall be directed to the Department of Juvenile 379 Justice for the purpose of funding the CINS/FINS program under 380 chapter 984. 381 (13) The Department of Management Services shall provide 382 reports to each chair of the legislative appropriations 383 committees regarding the performance of each contractor which 384 include, but are not limited to, information regarding each 385 required performance measure in each contract resulting from the 386 request for proposals for each contractor and for each 387 correctional facility and assigned correctional unit. 388 (14) After the Department of Management Services has issued 389 its notice of intent to award a contract, resolved any bid 390 protests, and concluded negotiation of a contract resulting from 391 the request for proposals, the Department of Corrections must 392 prepare and submit to the Legislative Budget Commission proposed 393 revisions to its operating budget which demonstrate the 7 394 percent savings required under subsection (3), which must be 395 attained during the first year of the term of the contract. The 396 Auditor General shall review and certify the attainment of the 397 required savings. 398 (15) After approval by the Legislative Budget Commission, 399 the Department of Management Services shall enter into a 400 contract with one or more winning bidders. 401 (16) Each current Department of Corrections employee at the 402 designated correctional facility and assigned correctional unit 403 who is affected by the privatization must be given first 404 preference for continued employment by the contractor selected 405 as a result of a request for proposals. The Department of 406 Corrections shall make reasonable efforts to find suitable job 407 placements for employees who wish to continue to be employed by 408 the state. 409 (17) The Department of Economic Opportunity shall 410 expeditiously provide assistance and services to employees of 411 the Department of Corrections who are not employed by the 412 contractor or who do not continue employment with the Department 413 of Corrections. 414 (18) The request for appropriation of funds to make 415 payments pursuant to contracts entered into by the Department of 416 Management Services for the operation and maintenance of the 417 correctional facilities and assigned correctional units as 418 authorized by this section shall be made by the Department of 419 Management Services in a request to the Department of 420 Corrections. The Department of Corrections shall include such 421 request in its legislative budget request to the Legislature as 422 a separately identified item and shall forward the request of 423 the Department of Management Services without change. After an 424 appropriation has been made by the Legislature to the Department 425 of Corrections for the correctional facilities and assigned 426 correctional units, the Department of Corrections shall have no 427 authority over such funds other than to pay from such 428 appropriation to the appropriate contractor such amounts as are 429 certified for payment by the Department of Management Services. 430 (19) Notwithstanding any other provision of this section, 431 the Department of Corrections shall be solely responsible for 432 the operation and maintenance of any correctional facility at 433 which the death penalty is administered. 434 (20) The Department of Management Services and the 435 Department of Corrections may adopt rules as necessary to 436 administer this section. 437 Section 2. This act shall take effect upon becoming a law.