Judge to weigh prison health privatization

By JIM SAUNDERS
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, May 23, 2012.......Eight months after a judge tossed out a controversial prison-privatization plan, attorneys will argue next week about the constitutionality of a state decision to contract with companies to provide inmate health care.

Leon County Circuit Judge Kevin Carroll will hold a hearing Tuesday focusing on budget fine print that lawmakers approved last year directing the Florida Department of Corrections to privatize prison health services.

Opponents, including the Florida Nurses Association and the American Federation of State, County and Municipal Employees, filed lawsuits early this year challenging the move. Like in the prison-privatization case, they argue that lawmakers improperly used the budget fine print --- known as proviso language --- to require the health care changes.

In a pre-hearing document filed last month, the nurses association said privatization of health services is a "substantial policy decision" that must be approved in a regular law, not in the annual budget.

"The (Florida) Constitution prohibits using appropriations acts to enact or change substantive law,'' association attorneys wrote in the document.

But the state and two potential contractors dispute that lawmakers acted improperly and argue that the health-care issue is different from the prison-privatization plan that was found unconstitutional. They contend, in part, that the Department of Corrections already had the legal authority to contract for health services, regardless of the language added to the budget.

"Plaintiffs seek to prevent (the department) from entering into contracts for the provision of inmate health care by attacking the validity of proviso,'' the state said in a court document this month. "However, the (department) has authority to enter into such contracts independent of the proviso."

The department has already sought proposals from companies that would provide the services. Last month, Secretary Kenneth Tucker sent a letter to legislative leaders and the governor's office recommending that Corizon, Inc., receive a contract for prisons in North and Central Florida, while Wexford Health Sources would receive a contract in South Florida.

Privatization is a highly controversial issue in state government, as workers fear they will lose jobs or see shrinking pay and benefits if private companies begin providing services. Supporters, including some key Republican legislative leaders and Gov. Rick Scott, say privatization can save tens of millions of dollars for the state.

Leon County Circuit Judge Jackie Fulford last September blocked a legislative plan to privatize 29 prison facilities across the southern half of the state, ruling that lawmakers violated the constitution by making the changes in the budget fine print. The state has appealed Fulford's decision, and a hearing is scheduled June 27 in the 1st District Court of Appeal.

In including prison-health privatization in the 2011-12 budget, lawmakers required that the change create at least 7 percent in cost savings compared to 2009-10 expenses. Wexford, which along with Corizon has formally intervened in the lawsuit, argued in a court document this month that the savings requirement justified the Legislature's use of proviso language in making the changes.

"Clearly, then, the impetus behind the proviso language was the achievement of cost savings,'' Wexford said in the document. "Saving tax dollars is properly connected with the subject of appropriations."

The opponents, however, raise a series of objections about using proviso language to help make what likely would be permanent changes in the prison health system.