The Florida Department of Corrections (FDOC) is moving forward with a legislative mandate to privatize its entire medical system. Whether the plan is implemented, however, may depend on the outcome of a lawsuit filed by prison health care workers challenging the FDOC's outsourcing of medical services for prisoners.

During its 2011 session, the Florida legislature approved a budget provision that authorized the privatization of 29 south Florida prisons. A challenge by the union that represented FDOC employees at the time, the Florida Police Benevolent Association, resulted in the Leon County Circuit Court ruling that the provision was unconstitutional. [See: PLN, April 2012, p.38; Feb. 2012, p.1]. While that issue generated considerable media attention, overlooked until now has been the state's plan to privatize the FDOC's entire medical care system.

That system serves Florida's 101,000 prisoners at an annual cost of around $400 million. The privatization plan seeks to save at least 7% annually. Contracts that the FDOC approved in April 2012 exceeded that amount, with anticipated savings of 11% in 2012 and 13% in 2013 from what the agency spent in 2009-2010, which is the benchmark set by the legislature. The winning contract bids were the two lowest-cost proposals.

Under the five-year contracts, Corizon – formed by the merger of Prison Health Services and Correctional Medical Services – would be paid $229 million annually to provide care for prisoners in Florida's northern and central regions (FDOC Regions I, II and III), while Wexford Health Sources would receive over $48 million a year to cover facilities in south Florida (Region IV). The FDOC's business case indicates that once medications and other costs are included, the total expense for the privatization plan will be an estimated $354 million annually.

The privatization of the state's prison medical system required the approval of the Joint Legislative Budget Commission for the transfer of funds from the FDOC's operating budget. The Commission scheduled a vote on that issue on September 12, 2012.

The day before the hearing, the Private Corrections Institute (PCI), a Florida-based non-profit organization that opposes the privatization of correctional services, submitted a letter to the Commission opposing the FDOC's request to transfer $57.67 million from its operating budget so it could proceed with the privatization of prison medical care.

"Private prison medical companies operate along the same model as HMOs, in that they provide managed care for prisoners and have a financial incentive to cut costs in order to generate profit," wrote PCI president Alex Friedmann, who also serves as the managing editor for Prison Legal News. "In other fields, privatization may have its benefits; but in terms of medical care, cutting costs – which is often achieved by delaying care, denying care, understaffing or hiring less experienced employees willing to work for lower wages – can have fatal consequences.

"This is particularly true in the prison setting, where prisoners are literally a captive market for private prison medical firms such as Corizon and Wexford. Prisoners can not select their own doctor, seek a second opinion, or go to a different clinic or hospital. They are totally dependent on the medical treatment provided at their facility, and in a privatized system are at the mercy of companies that must cut costs in order to generate profit, as that is their primary goal: Not to provide adequate or even necessary health care, but to make money."

PCI's letter cited two examples of grossly deficient care provided by private prison medical companies. The first involved the August 16, 2009 death of Ashley Ellis, who was serving a 30-day sentence at the Northwest State Correctional Facility in Vermont. Prison Health Services staff had failed to provide her with potassium despite a doctor's order and Ellis' repeated requests for her medication. [See: PLN, Feb. 2011, p.36; April 2010, p.32]. The second incident involved the failure of Correctional Medical Services to treat Delaware prisoner Anthony Pierce, 22, who had a brain tumor the size of a grapefruit protruding from his head. Pierce, known as "the brother with two heads," died on March 22, 2002 without receiving treatment for 7 months despite his obvious, serious medical condition. [See: PLN, Dec. 2005, p.1].

Regardless, the Joint Legislative Budget Commission voted to approve the transfer of FDOC funds to proceed with the privatization of medical care in Florida's prison system, and approved a budget amendment to cover the state's $229 million contract with Corizon.

However, the state faced a legal challenge to the privatization plan by a group of FDOC health care workers and the labor unions that represent them – AFSCME and the Federation of Physicians and Dentists/Alliance of Healthcare Professional Employees. The Florida Nurses Association also joined in the lawsuit.

The health care workers argued that lawmakers did not have authority to order the privatization of prison medical care without passing a separate law; the authorization was contained in proviso language in the state's budget, as was the legislature's 2011 attempt to privatize 29 south Florida prisons, which had been found unconstitutional. Thus, they contended, the FDOC's medical care privatization plan should be struck down, too.

In order to protect its lucrative contract, Corizon's attorneys filed a brief in the case arguing that Florida law considers the privatization of prisons differently from the privatization of services such as health care. However, Corizon attorney William Williams admitted that the legislative process used to achieve the privatization of prison medical services was "fairly arcane."

On December 4, 2012, Leon County Circuit Court Judge John Cooper held that the budget proviso language concerning the privatization of prison medical care was unconstitutional, as the legislature should have included that provision in a separate bill rather than using the budgetary process. Although state lawmakers have the power to mandate privatization of medical services in FDOC facilities, Judge Cooper found the method they used was unlawful because it avoided a vote by the full legislature and allowed the Joint Legislative Budget Commission – which has only 14 members – to decide the issue by approving the privatization plan.

"While the State of Florida does have authority to privatize prison health care throughout the state, the full Legislature must do so by passing the appropriate funding mechanism specifically directed to that goal," Cooper wrote. See: Florida Public Employees Council 79 v. Tucker, 2nd Judicial Circuit Court (Tallahassee, FL), Case No. 37 2012 CA 003119.

AFSCME attorney Alma Gonzalez applauded the ruling, saying it indicated that Governor Rick Scott "cannot play fast and loose with the Florida constitution."

The state has appealed the ruling to the 1st District Court of Appeal, noting that because it had anticipated savings from the privatization plan, it now faces a budget shortfall of up to $90 million.

"This will jeopardize other department needs and legislative budget priorities which could include additional reductions in staffing and program services," stated FDOC Deputy Secretary Mike Crews. He noted, though, that "[w]hile we work to resolve this issue the department will continue to provide constitutionally required healthcare services to inmates."

While Judge Cooper's ruling is being appealed, the state is unable to proceed with privatization of medical care in FDOC facilities in Regions I, II and III. The proviso language related to privatization of prison medical services, however, did not apply to FDOC prisons in Region IV covered by the Wexford contract, which had received a separate line item in the state's 2012-13 budget. Consequently, the court allowed the outsourcing of medical services at those facilities to proceed.

The plan to privatize medical care in all Florida state prisons meant that approximately 2,300 existing FDOC health care employees would be terminated, although they had first consideration to reapply for their former jobs with Corizon and Wexford – at lower wages with fewer benefits. The health care workers received layoff notices in November 2012, but the job terminations for prisons in Regions I, II and III were placed on hold following Judge Cooper's ruling.

In January 2013, FDOC spokeswoman Ann Howard said layoff notices were sent to 400 health care workers at the nine prisons in Region IV, which were not covered by the ruling.

"This is bad for employees who will lose retirement and health benefits and probably pay," said AFSCME spokesman Doug Martin.

It's also bad for Florida prisoners, given the dismal track record of for-profit companies that provide prison medical services, including Corizon and Wexford. [See, e.g.: PLN, March 2013, p.54; June 2011, p.12; Dec. 2010, p.27; Nov. 2009, p.16].

Unfortunately, based on recent developments, the lawsuit challenging the FDOC's plan to privatize medical care may be moot, as the Florida legislature included around $230 million in appropriation bills to cover the cost of privatizing prison medical services in the remaining FDOC regions, according to an April 2013 news report. The proposed budget submitted by Governor Scott includes the same amount.

Meanwhile, however, Wexford is pursuing a bid protest against the FDOC's contract award to Corizon to provide medical care in Regions I, II and III. The company filed the protest in July 2012 and moved it to the 1st District Court of Appeal last September. If the protest is successful the contract would have to be rebid, further delaying privatization of medical services in most Florida state prisons.

"I'm always leery of a company that seeks a contract but at the same time protests it and in a sense questions the process but wants to move forward with it," observed state Rep. Daryl Rousson.

Sources: www.thefloridacurrent.com; Miami Herald; Palm Beach Post; www.wlrn.org; www.businessweek.com; www.tallahassee.com; www.tampabay.com; www.wfsu.org; www.gainesville.com; www.news-press.com; www.tcpalm.com; PCI letter dated Sept. 11, 2012

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