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Department of Corrections Delves Into Prison Health Privatization

May 13, 2013 - 6:00pm

A three-judge panel questioned Tuesday why it should wade into a battle over the possible privatization of prison health-care services, with the budget at issue in the change set to expire in several weeks.

The 1st District Court of Appeal judges listened to arguments on a ruling in December that prevented the Department of Corrections from contracting out the health services in all but the bottom third of the state. The contract for that part of the state was included in the fine print of the budget for the spending year that ends June 30.

But privatizing medical care for inmates in the other three regions of the state was not specifically included, so Leon County Circuit Judge John Cooper said the agency couldn't go forward with contracts in those areas.

The appeals-court judges gave few indications in their questions about which way the decision might go. With the budget set to run out in about a month and a half, though, some of the judges questioned whether the issue was moot.

Timothy Osterhaus, who represented the state during the arguments, said the state still had time to move forward if the judges act quickly.

"If we can get an opinion from this court in the next week or so, I think we'll be off and running," Osterhaus said.

"But if it takes three weeks?" responded Chief Judge Robert Benton.

Osterhaus said the state hoped that the court would be able to decide the case more quickly than that. He also said the court shouldn't consider the case to be moot because future lawsuits against privatization actions by agencies could bring up the same issues.

Along those lines, Judge Scott Makar pressed an attorney for the unions suing to overturn the contracts about whether the court should decide the case, which also involves how far the Legislative Budget Commission can go in amending budgets. The attorney, Thomas Brooks, was arguing that the case was moot.

"Point is, I might agree with you on that," Makar said. "But my question is, why shouldn't we nonetheless resolve an issue so as to provide guidance" to lawmakers, other state officials and companies.

The Legislative Budget Commission is a body of lawmakers that can revise the budget when lawmakers aren't in session to account for unexpected events or agency requests to move money around. Cooper's decision was seen as something of a precedent-setter in how far that panel can go.

But Brooks said the appeals court would not follow the principle of judicial restraint if it ruled on the question when there was not a need. Besides, he said, the main question is whether Cooper was right when he said the Legislature should have spelled out the privatization in all four regions if thats what lawmakers wanted to do.

"This case, in my view, depends upon whether the judge was right or wrong on the legislative intent," Brooks said. "If he was right on the intent, then the LBC doesn't have any power to vary from what that intent is."

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