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.