Florida Senate - 2012                      CS for CS for SB 2038
       
       
       
       By the Committees on Budget; Rules; and Rules
       
       
       
       
       576-02370A-12                                         20122038c2
    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 all activities regarding the
   28         classification of inmates remain under the supervision
   29         and direction of the Department of Corrections;
   30         requiring that each facility’s average daily
   31         population and medical and psychological grade
   32         population percentages remain unchanged from the
   33         average daily population calculated for the 2010-2011
   34         fiscal year; requiring that certain accounts
   35         associated with the correctional facilities and
   36         assigned correctional units continue to be remitted to
   37         the General Revenue Fund; providing that certain
   38         statutory provisions regarding contractual
   39         arrangements with private entities for the operation
   40         and maintenance of correctional facilities and the
   41         certification of private correctional officers do not
   42         apply to a request for proposals or a contract
   43         authorized by the act; providing that s. 216.023,
   44         F.S., regarding legislative budget requests furnished
   45         to the Legislature, does not initially apply to the
   46         Department of Corrections or the Department of
   47         Management Services with respect to the services
   48         required to be privatized under the act; specifying
   49         the requirements for any contract resulting from a
   50         request for proposals; limiting the term of the
   51         contract and providing for renewal; requiring the
   52         appointment of a contract monitor; providing
   53         requirements for the certification of private
   54         correctional officers at the contractor’s expense;
   55         providing required performance measures for a contract
   56         that results from a request for proposals; requiring
   57         the contract to specify that employees of the
   58         contractor do not have the right to strike; requiring
   59         that the contractor purchase services and supplies for
   60         the operation and maintenance of the correctional
   61         facilities or assigned correctional units from a
   62         subcontractor or supplier that is located in this
   63         state or that employs residents of this state under
   64         certain circumstances; providing an exception;
   65         requiring that the contractor reimburse the state for
   66         the total cost of unused, accumulated leave actually
   67         paid by the state to former employees of the
   68         Department of Corrections who were employed at the
   69         correctional facilities and assigned correctional
   70         units; requiring that the Department of Management
   71         Services certify to the contractor the amount that
   72         must be reimbursed; requiring that the contractor pay
   73         the reimbursement to the state within a specified
   74         period after receiving the department’s certification;
   75         requiring that the contractor pay to the Department of
   76         Management Services the reasonable and direct costs
   77         associated with the pursuit or apprehension of an
   78         escapee from a correctional facility and incurred by
   79         any state or local law enforcement agency while
   80         involved in the pursuit or apprehension of an escapee
   81         during a specified period after the inmate’s escape;
   82         requiring that the Department of Management Services
   83         provide reports to the legislative appropriations
   84         committees regarding the performance of each
   85         contractor; requiring that the Department of
   86         Corrections prepare and submit to the Legislative
   87         Budget Commission proposed revisions to its operating
   88         budget; requiring that the Department of Management
   89         Services enter into a contract with one or more
   90         winning bidders after approval by the Legislative
   91         Budget Commission; requiring that current employees at
   92         each designated correctional facility and assigned
   93         correctional unit be given first preference for
   94         continued employment; requiring that the Department of
   95         Corrections make reasonable efforts for finding job
   96         placements for employees who wish to continue to be
   97         employed by the state; requiring that the Department
   98         of Economic Opportunity expeditiously provide
   99         assistance and services to employees of the Department
  100         of Corrections who are not employed by the contractor
  101         or who do not continue employment with the Department
  102         of Corrections; providing requirements for the request
  103         for appropriation of funds; limiting the authority of
  104         the Department of Corrections with respect to such
  105         appropriation; authorizing the Department of
  106         Management Services and the Department of Corrections
  107         to adopt rules; providing an effective date.
  108  
  109  Be It Enacted by the Legislature of the State of Florida:
  110  
  111         Section 1. Section 944.7115, Florida Statutes, is created
  112  to read:
  113         944.7115 Department of Corrections; Southern Florida
  114  Region; privatization of correctional facilities.—
  115         (1) Notwithstanding s. 287.057(1)(b)1., the Department of
  116  Management Services, working with the Department of Corrections,
  117  shall, through the issuance of two or more requests for
  118  proposals, privatize the management and operation of all
  119  correctional facilities and assigned correctional units,
  120  including prisons, annexes, work camps, road prisons, and work
  121  release centers, which are operated by the Department of
  122  Corrections in the Southern Florida Region and located in
  123  Manatee, Hardee, Indian River, Okeechobee, Highlands, St. Lucie,
  124  DeSoto, Sarasota, Charlotte, Glades, Martin, Palm Beach, Hendry,
  125  Lee, Collier, Broward, Miami-Dade, and Monroe Counties,
  126  excluding the South Florida Reception Center and any
  127  correctional facility or assigned correctional unit that has
  128  been closed or scheduled for closure before June 30, 2012. This
  129  subsection does not apply to nurses working for the department
  130  in Region IV.
  131         (2) The Department of Management Services shall issue its
  132  requests for proposals no later than 30 days after the effective
  133  date of this act. The Department of Management Services shall
  134  require that any proposal submitted in response to a request for
  135  proposals be submitted no later than 30 days after the issuance
  136  of the request for proposals. The Department of Management
  137  Services shall prepare the business case for the privatization
  138  required under this section, in accordance with s. 287.0571,
  139  prior to the issuance of the requests for proposals.
  140         (3) Each request for proposals which is issued by the
  141  Department of Management Services must provide that the total
  142  cost of a responsive proposal to the state during the first year
  143  of the contract must result in actual cost savings to the state
  144  of at least 7 percent of the costs incurred by the state for the
  145  2010-2011 fiscal year for the provision of the services at the
  146  correctional facilities and assigned correctional units included
  147  in the request for proposals. For each correctional facility and
  148  assigned correctional unit included in a request for proposals,
  149  the Department of Corrections shall determine and provide to the
  150  Department of Management Services the costs incurred by the
  151  state for the 2010-2011 fiscal year using the average daily
  152  population of each correctional facility and assigned
  153  correctional unit during the 2010-2011 fiscal year and the
  154  direct and distributed inmate per diem cost for each
  155  correctional facility and assigned correctional unit during the
  156  2010-2011 fiscal year, reduced for the 3 percent retirement
  157  contribution now required by state employees under chapter 121,
  158  by inmate medical costs, and by the department’s direct and
  159  personnel costs associated with inmate classification. The total
  160  costs to be incurred by the state in the second or subsequent
  161  years of the contract resulting from a request for proposals may
  162  increase annually by not more than the percentage change in the
  163  Consumer Price Index for All Urban Consumers, U.S. City Average,
  164  all items not seasonally adjusted or successor reports, for the
  165  preceding December as initially reported by the United States
  166  Department of Labor, Bureau of Labor Statistics; however, any
  167  such increase is contingent upon appropriation by the
  168  Legislature. Notwithstanding s. 120.57(3), the provisions in a
  169  request for proposals which relate to the cost savings required
  170  under this subsection are not subject to challenge in any
  171  protest of the specifications of the request for proposals.
  172         (4) Each contractor selected as a result of a request for
  173  proposals must manage and operate each correctional facility and
  174  the assigned correctional unit at capacities set forth in s.
  175  944.023.
  176         (5) All activities regarding the classification of inmates
  177  shall remain under the Department of Corrections’ supervision
  178  and direction as required by law. Each facility’s average daily
  179  population, as well as medical and psychological grade
  180  population percentages, shall remain substantially unchanged
  181  from the average daily population calculated for the 2010-2011
  182  fiscal year.
  183         (6) Notwithstanding ss. 944.72 and 945.215, funds from
  184  canteens, subsistence payments, and any other participating
  185  accounts associated with or located at the correctional
  186  facilities and all assigned correctional units shall continue to
  187  be remitted to the General Revenue Fund.
  188         (7) The provisions of ss. 944.105(1) and (7) and 944.719(2)
  189  do not apply to any request for proposals or contract authorized
  190  by this section. Section 216.023 does not apply to the
  191  Department of Corrections or the Department of Management
  192  Services with respect to the services required to be privatized
  193  under this section until the Department of Corrections is
  194  required to submit its legislative budget request for the first
  195  fiscal year that begins after the privatization required under
  196  this section has been implemented.
  197         (8) Any contract entered into by the Department of
  198  Management Services resulting from a request for proposals must:
  199         (a) Require compliance with all applicable federal, state,
  200  and local laws and all rules adopted by the Department of
  201  Management Services and the Department of Corrections.
  202         (b) Require actual cost savings to the state of at least 7
  203  percent of the costs incurred by the state for the 2010-2011
  204  fiscal year for the provision of the required services at the
  205  correctional facilities and assigned correctional units included
  206  in the request for proposals.
  207         (c)Be for a term not to exceed 5 years, which may be
  208  renewed as provided in s. 287.057.
  209         (d)Require the selection and appointment of a full-time
  210  contract monitor. The contract monitor shall be appointed and
  211  supervised by the Department of Management Services. The
  212  contractor shall reimburse the Department of Management Services
  213  for the salary and expenses of the contract monitor. It is the
  214  obligation of the contractor to provide suitable office space
  215  for the contract monitor at the correctional facility. The
  216  contract monitor shall have unlimited access to the correctional
  217  facilities and assigned correctional units.
  218         (e) Require the certification of private correctional
  219  officers pursuant to s. 943.1395 at the contractor’s expense,
  220  and all such officers must meet the minimum qualifications
  221  established in s. 943.13. All other employees of the contractor
  222  who perform their duties at the private correctional facility
  223  shall, at a minimum, receive the same quality and quantity of
  224  training required by the state for employees of state-operated
  225  correctional facilities. All training expenses are the
  226  responsibility of the contractor. The Department of Corrections
  227  shall be the contributor and recipient of all criminal
  228  background information necessary for certification by the
  229  Criminal Justice Standards and Training Commission.
  230         (f) Include specific performance measures and levels of
  231  expected performance for the contractor in order to ensure
  232  contractor performance and accountability, and require the
  233  contractor to provide the Department of Management Services with
  234  information concerning each performance measure for each
  235  separate correctional facility and assigned correctional unit
  236  for each month, calendar quarter, and year during the term of
  237  the contract, in the format specified by the Department of
  238  Management Services.
  239         1. The required performance measures must include, but are
  240  not limited to:
  241         a. The number of batteries committed by inmates on one or
  242  more persons per 1,000 inmates;
  243         b. The number of inmates receiving major disciplinary
  244  reports per 1,000 inmates;
  245         c. The percentage of random inmate drug tests that are
  246  negative;
  247         d. The percentage of reported criminal incidents
  248  investigated by the proper authorities;
  249         e. The number of escapes from the secure perimeter of major
  250  institutions;
  251         f. The percentage of inmates placed in a facility that
  252  provides at least one of the inmate’s primary program needs;
  253         g. The number of transition plans completed for inmates who
  254  are released from prison;
  255         h. The number of release plans completed for inmates who
  256  are released from prison;
  257         i. The percentage of release plans completed for inmates
  258  who are released from prison;
  259         j. The percentage of inmates who successfully complete drug
  260  abuse education or treatment programs;
  261         k. The number of inmates who are receiving substance abuse
  262  services;
  263         l. The percentage of inmates who complete mandatory
  264  literacy programs and who score at or above the 6th grade level
  265  on Tests of Adult Basic Education;
  266         m. The percentage of inmates who successfully complete
  267  mandatory literacy programs;
  268         n. The percentage of inmates who successfully complete
  269  education programs for the General Education Development (GED)
  270  test preparation;
  271         o. The percentage of inmates needing special education
  272  programs who participate in special education programs in
  273  accordance with federal law;
  274         p. The percentage of inmates who successfully complete
  275  vocational education programs;
  276         q. The average increase in grade level achieved by inmates
  277  participating in education programs every 3-month instructional
  278  period; and
  279         r. The percentage of inmates who successfully complete
  280  transition, rehabilitation, or support programs without
  281  subsequent recommitment to community supervision or prison for
  282  24 months after release.
  283         2. For work release centers, the required performance
  284  measures must also include, but are not limited to:
  285         a. The percent of employment of supervised individuals;
  286         b. The illegal substance use by supervised individuals;
  287         c. The victim restitution paid by supervised individuals;
  288         d. Compliance by supervised individuals with no-contact
  289  orders;
  290         e. The number of serious incidents occurring at the
  291  facility; and
  292         f. The number of absconders.
  293         (g) Require that any contract between the contractor and a
  294  union representing employees of the contractor at a correctional
  295  facility or assigned correctional unit must provide that the
  296  employees of the contractor do not have the right to strike.
  297         (9) The contractor shall purchase services and supplies
  298  required for the operation and maintenance of the correctional
  299  facilities or assigned correctional units included in the
  300  contract from a subcontractor or supplier that is located in
  301  this state or that employs residents of this state if the costs
  302  of such services and supplies are equal to the cost of such
  303  services and supplies offered by a subcontractor or supplier
  304  that is not located in this state or that does not employ
  305  residents of this state; however, if the costs, terms, and
  306  conditions associated with the purchase of services and supplies
  307  are not identical, the contractor may select the subcontractor
  308  or supplier preferred by the contractor.
  309         (10) The contractor shall reimburse the state for the total
  310  cost of unused, accumulated leave actually paid by the state, in
  311  accordance with the law and policies in effect on January 1,
  312  2012, to former employees of the Department of Corrections who
  313  were employed at the correctional facilities and assigned
  314  correctional units included in the contract during the pay
  315  period immediately prior to the date on which the contractor
  316  begins performance. The total amount that must be reimbursed may
  317  not exceed $8 million under all contracts entered into pursuant
  318  to this section. The Department of Management Services shall
  319  certify to the contractor the amount that must be reimbursed and
  320  the contractor shall pay the reimbursement to the state no later
  321  than 180 days after receipt of such certification.
  322         (11) The contractor shall pay to the Department of
  323  Management Services the reasonable and direct costs, certified
  324  by the Department of Management Services and included in the
  325  contract, which are associated with the pursuit or apprehension
  326  of an escapee from a correctional facility and incurred by any
  327  state or local law enforcement agency while involved in the
  328  pursuit or apprehension of an escapee during the 48 hours after
  329  the inmate’s escape.
  330         (12) The Department of Management Services shall provide
  331  reports to each chair of the legislative appropriations
  332  committees regarding the performance of each contractor which
  333  include, but are not limited to, information regarding each
  334  required performance measure in each contract resulting from the
  335  request for proposals for each contractor and for each
  336  correctional facility and assigned correctional unit.
  337         (13) After the Department of Management Services has issued
  338  its notice of intent to award a contract, resolved any bid
  339  protests, and concluded negotiation of a contract resulting from
  340  the request for proposals, the Department of Corrections must
  341  prepare and submit to the Legislative Budget Commission proposed
  342  revisions to its operating budget which demonstrate the 7
  343  percent savings required under subsection (3), which must be
  344  attained during the first year of the term of the contract.
  345         (14) After approval by the Legislative Budget Commission,
  346  the Department of Management Services shall enter into a
  347  contract with one or more winning bidders.
  348         (15) Each current Department of Corrections employee at the
  349  designated correctional facility and assigned correctional unit
  350  who is affected by the privatization must be given first
  351  preference for continued employment by the contractor selected
  352  as a result of a request for proposals. The Department of
  353  Corrections shall make reasonable efforts to find suitable job
  354  placements for employees who wish to continue to be employed by
  355  the state.
  356         (16) The Department of Economic Opportunity shall
  357  expeditiously provide assistance and services to employees of
  358  the Department of Corrections who are not employed by the
  359  contractor or who do not continue employment with the Department
  360  of Corrections.
  361         (17)The request for appropriation of funds to make
  362  payments pursuant to contracts entered into by the Department of
  363  Management Services for the operation and maintenance of the
  364  correctional facilities and assigned correctional units as
  365  authorized by this section shall be made by the Department of
  366  Management Services in a request to the Department of
  367  Corrections. The Department of Corrections shall include such
  368  request in its legislative budget request to the Legislature as
  369  a separately identified item and shall forward the request of
  370  the Department of Management Services without change. After an
  371  appropriation has been made by the Legislature to the Department
  372  of Corrections for the correctional facilities and assigned
  373  correctional units, the Department of Corrections shall have no
  374  authority over such funds other than to pay from such
  375  appropriation to the appropriate contractor such amounts as are
  376  certified for payment by the Department of Management Services.
  377         (18)The Department of Management Services and the
  378  Department of Corrections may adopt rules as necessary to
  379  administer this section.
  380         Section 2. This act shall take effect upon becoming a law.