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.